NGUYEN VAN DUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 742/2020

[2025] HKCFI 4239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 742 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and by adding “Decision of Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” before the words “4 March 2020”;

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Vietnam. By a Form 86 filed on 22 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 22 April 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision dated 4 March 2020.

2.  The Applicant did not seek an oral hearing of his application. I have hence dealt with such on the papers.

3.  There is a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 4 March 2020 (“TCAB Decision”)[1] which relates to the Applicant’s non-refoulement claim. I hence take it that the Applicant sought leave in relation to the TCAB Decision and will use the abbreviations and definitions from such unless otherwise specified herein. I have therefore amended the Form 86 of my own motion to reflect the identity of the proper putative respondent and interested party, and the decision in respect of which relief is sought.

Background

4.  The TCAB Decision sets out the Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief, as well as his immigration and procedural history leading up to the same decision. In essence:

a.  The Applicant claimed non-refoulement protection on the basis that if he were returned to Vietnam he would be harmed or killed by his creditor, one Ah Thanh;

b.  His claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 13 June 2018 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/Non-Refoulement Claims Petition Office (“NRCPO”), which held a hearing in relation to the Applicant’s non-refoulement claims on 3 July 2019; and

d.  The TCAB/NRCPO then handed down the TCAB Decision which rejected the Applicant’s petition/appeal and confirmed the Director’s Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

10.  The TCAB/NRCPO began by setting out the Applicant’s procedural and immigration history (Paragraphs 1 to 5), then outlined the documents containing the Applicant’s claim (Paragraph 7).

11.  The decision-maker then summarised the facts of the Applicant’s claim and outlined the conduct of and evidence given at the hearing (Paragraphs 8 to 11). In particular, as recorded therein, at the hearing the Applicant told the TCAB/NRCPO that:

a.  his parents and siblings had since helped to make repayments on the loan, and since his mother had assumed responsibility to repay it one year ago Ah Thanh had stopped calling and threatening;

b.  The Applicant “…no longer thinks he will be harmed if he returns to Vietnam”;

c.  “…because his mother had assumed responsibility to repay the loan, and the loan was almost complete repaid, Ah Thanh had promised the[Applicant’s] mother that he [Ah Thanh] would not pursue the [Applicant]”; and

d.  “… that he now had no reason to fear returning to Vietnam”.

12.  The TCAB/NRCPO hence unsurprisingly accepted inter alia that responsibility for the loan had now been assumed by the Applicant’s mother, that the loan had been almost completely repaid, that Ah Thanh had told the Applicant’s mother that he would no longer pursue the Applicant, and that the Applicant no longer feared returning to Vietnam for any reason. The decision-maker therefore, and again unsurprisingly, found that there was no real risk that the Applicant would be harmed if he returned to Vietnam (Paragraph 12).

13.  The TCAB/NRCPO went on to consider the contents of Torture Risk, BOR 3 Risk, and BOR 2 Risk, and Persecution Risk in some detail and find that none of them were established. It clearly did so on the basis of the aforesaid finding that there was no real risk that the Applicant would be harmed if he returned to Vietnam (and in relation to Persecution Risk also on the basis that there was no Convention reason) (Paragraphs 13 to 47). The decision-maker eventually concluded that the Applicant was not entitled to non-refoulement protection on any of the applicable grounds, refused the appeal/petition, and confirmed the Director’s Decision (Paragraphs 48 to 49).

14.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave. This is especially so given the assessment, reasoning, and findings regarding the risk of harm (which were based on the Applicant’s own testimony during the oral hearing and is primarily within the province of the decision-maker), and accordingly as to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

15.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review. What is clear is that the present application has consumed judicial resources for no good reason whatsoever.

Conclusion

16.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

17.  The Applicant may make an appointment with my clerk for this decision to be interpreted to him in Chinese, if he wishes.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1