NGUYEN DINH TUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 3889/2019

[2025] HKCFI 1043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3889 OF 2019

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 or counsel in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 30 December 2019, 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 6 December 2019 (“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/2019/HCAL003889_2019_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant failed to establish a case for non-refoulement on all the applicable grounds under the Unified Screening Mechanism (“the USM”), dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 September 2019 and confirmed the Director’s said decision.

Amendments

3.  In Form 86, the applicant named both the Board and the Immigration Department as the proposed respondents, and both as the proposed interested party, when the putative respondent should just be the Board and the putative interested party should just be the Director.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

4.  The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)   The applicant is a male Vietnamese national whose home locality is Huyen Nghi Loc in Nghe An Province in Northern Vietnam.  He was 28 years old when he appeared before the Board.  He received education up to the 4^th year in high school.  

(2)   The applicant claimed that he borrowed money from a loan shark named Nguyen Quang Hung (“NQH”) in June 2018 to start a chicken farm.

(3)   He sneaked into Hong Kong illegally by boat from Shenzhen on 2 August 2019.  He was arrested by immigration officers on the same day.  On 9 August 2019, he lodged a claim for non-refoulement protection on all the available grounds under the USM.

(4)   The applicant said that he feared harm from NQH because of his inability to repay NQH the debt of VND 40M, as NQH and his men had assaulted him 4 times before he left Vietnam.

Grounds for judicial review

5.  The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

6.  However, the applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 30 December 2019.  He merely stated in his affirmation that he does not agree with the Board’s decision; he wants to file judicial review against the Board; he cannot go back to his home country; and his life is in danger over there.

Discussion

7.  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).

8.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

9.  The applicant did not advance any specific ground for the intended judicial review, except making his bare assertion that his life would be in danger in his home country.  However, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s decision for any error of law, procedural unfairness and irregularities.

10.  In assessing the appeal by the applicant, the Board held an oral hearing on 29 November 2019.  The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person.  The Board carefully examined all the 4 assault incidents mentioned by the applicant which led to his feared treatment from NQH and questioned the applicant for details.

11.  The Board also re-assessed the applicant’s claim on all the applicable grounds under the USM, namely:-

a.  risk of torture under Part VIIC of the Immigration Ordinance;

b.  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

c.  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

d.  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

12.  After due consideration of the law and the evidence as presented by the applicant, the Board found the applicant dishonest and there was no reliable evidence to say that he suffered serious ill-treatment or serious harm.  The Board concluded that the applicant’s vague and bare story was totally unsatisfactory and he was not entitled to non-refoulement protection under any of the applicable grounds.  Thus, the Board did consider whether the applicant’s life would be in danger in his home country, but concluded that it would not.

13.  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 error of law, procedural unfairness or irrationality in the Board’s Decision.

14.  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.  Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

15.  For reasons aforesaid, the Leave Application is dismissed.

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