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HCAL 1726/2021
[2026] HKCFI 2387
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1726 OF 2021
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BETWEEN
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Le Van Tung |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 20 December 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 26 November 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001726_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 January 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named “against the decision of the TORTURE CLAiMS APPEAL BOARD and IMMiGRATiON DEPARTMENT Dated : 26.Nov.21” as the putative respondent and did not name any putative interested party in Form 86.
4. In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.
The applicant’s case
6. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor named NGUYEN Ngoc Duong (“NGUYEN”) and NGUYEN’s followers due to his inability to repay a loan of 600 million Vietnamese Dong borrowed from NGUYEN.
Disposal on paper
8. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
9. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
10. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 20 December 2021. In the affirmation, he merely stated that he did not agree with the Board’s Decision, he could not go back to his home country and he was in danger over there.
Discussion
11. First of all, the applicant’s danger in his home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
12. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
13. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
14. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 5 October 2021. The applicant was present and was thus given the chance to present his case to the Board in person.
15. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.
16. The Board found that the applicant had only made bare assertions and provided no objective proof of his assertions. As can be seen in paragraph 39 of the Board’s Decision, the Board found the material facts and information provided by the applicant to be implausible or unreliable and they adversely affected the applicant’s credibility.
17. In particular, the Board was not convinced that (1) the applicant came to Hong Kong because of the alleged threat of harm from the creditor; (2) the applicant had suffered any physical or mental pain or suffering as he had alleged, and (3) the creditor and his followers were still chasing the applicant all over his home country and wanted to harm him.
18. The Board found that the centerpiece of the applicant’s story did not stand, and that the applicant was dishonest and unreliable and hence not a genuine claimant for non-refoulement protection.
19. Despite its findings as summarized above, the Board did go on to assess the applicant’s case on all the applicable grounds under the USM.
20. The Board found that the applicant had never suffered injury which attained the minimum level of severity. There was no evidence of state acquiescence in his dispute with the creditor. The applicant’s alleged harm was only due to debt collection and did not fall within any of the Convention grounds.
21. Moreover, the Board found from extensive, fully-referenced country of origin information (“COI”) that although police abuse and corruption remained to be problems, the Vietnamese authorities had put measures in place to improve police accountability and effectiveness. The Board considered that state protection would be available to the applicant upon refoulement to Vietnam.
22. The Board also found that the applicant had many options for relocation within Vietnam. The Board did not accept that the applicant’s creditor was still interested in locating the applicant all over Vietnam, and that was even if the creditor should have the resources and manpower, as well as was willing, to expend the same to search for a needle in a haystack. The Board found that there were places in Vietnam where the applicant, being able-bodied with 12 years of education and years of work experience, could relocate safely without undue hardship upon his return to Vietnam.
23. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
24. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
25. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
26. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
27. For reasons aforesaid, the Leave Application is dismissed.
Dated the 29th day of April 2026
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( Gladys LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 29/04/2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 29/04/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17572/21/1/68/V2712
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 681/20 (Formerly RBCZ 10568/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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