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HCAL 2400/2019
[2025] HKCFI 256
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2400 of 2019
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BETWEEN
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Hoang Dinh Hung |
1st Applicant |
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Hoang Thi Minh Chau |
2nd Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
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 (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 is amended on the court’s own motion;
2. Leave to the applicants to withdraw the Leave Application; and
3. The Leave Application be dismissed.
Observation for the Applicants:
Introduction
1. By prescribed Form 86 filed on 20 August 2019, the applicants applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the Chinese decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“the Board”) dated 31 July 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a Chinese decision of the Director of Immigration (“Director”) dated 11 September 2018 (“Director’s Decision”) rejecting the applicants’ non-refoulement claim.
2. In Form 86, the applicants named the Board and the Director together as the proposed respondents. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.
3. While the Director’s and Board’s Decisions are in Chinese, both the applicants’ Form 86 and supporting affirmation are in English. In the circumstances, it is appropriate to use English in this Form CALL-1.
4. As the applicants had requested for a hearing of the Leave Application, this court held a hearing on 31 December 2024. Both applicants attended in person. The first applicant (“A1”) is the father of the second applicant (“A2”), who was born on 7 March 2001. A2 was already an adult when the Form 86 was filed. At the hearing, the applicants informed this court that they would like to withdraw the Leave Application, which application will be dealt with below.
Background
5. The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.
6. The applicants are nationals of Vietnam. Both applicants entered Hong Kong illegally from Mainland China on 27 February 2017. According to the immigration records, both applicants surrendered to the Immigration Department on 6 March 2017. On the same day, they lodged their non-refoulement claim and the applicants’ case was considered under all applicable grounds – risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The applicants’ claim was based on a fear of being harmed or killed by their creditor upon their return to Vietnam.
7. The Director decided against the applicants’ claim on all the above applicable grounds. The Director found that the level of risk and harm was low, and the debt dispute between the applicants and the creditor was a pure private dispute that there had no government involvement. After having referred to the country of origin information reports (“COI”), the Director was satisfied that state protection was available and internal relocation alternatives were not unduly harsh or unreasonable. Hence, the applicants’ appeal to the Board.
8. The Board decided it was not necessary to hold a hearing as it considered that there were sufficient materials placed before the Board. In the Board’s Decision, the Board found that there was no evidence to suggest that the applicants suffered any harm from the creditor, and in any event, the matter was a private dispute that did not involve the authorities. It went on to consider the COI, and found that state protection and the option of internal relocation were available. The Board dismissed the applicants’ appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
9. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
Discussion and conclusion
10. The applicants’ Form 86 did not contain any grounds for seeking relief. In their supporting affirmation of the same date, they simply stated that they did not agree with the Board’s Decision and exhibited the Board’s Decision. There were no evidence or identification of errors in support of the intended challenge.
11. After examining the applicants’ evidence in detail, the Board found that the applicants’ case was not established due to a lack of supporting evidence. Most importantly, the findings of the availability of state protection and internal location were based on the Board’s examination of the relevant COI. These are findings of fact, which the court in a judicial review will not interfere with.
12. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicants’ fear was not established and that the applicants failed to discharge their burden of proving the asserted fears and risks.
13. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Withdrawal of Leave Application
14. At the hearing, both applicants informed this court that they wanted to return to Vietnam, and withdraw the Leave Application. The applicants were therefore asked to confirm their withdrawal applications under oath. A1 affirmed that his son in Vietnam has settled the debt problem and the situation is now calm. He is old now and would like to go back with his daughter. A2 affirmed that since she came with her father to Hong Kong together, she would like to accompany the father to go back. The father’s fear of her being trafficked by the creditor to pay outstanding loan is now gone as the debt issue had been resolved by her older brother.
15. Both applicants also affirmed under oath that they made the withdrawal applications in their free will, and understood that the Board’s Decision continued to stand upon their withdrawal.
16. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.
Orders
17. The Form 86 is amended on the court’s own motion.
18. Leave to the applicants to withdraw the Leave Application.
19. The Leave Application be dismissed.
Dated the 10th day of January 2025.
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(Allen 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 Applicants:
If leave has been granted, the Applicant or the Applicant’s 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 to the Applicants
on 10/1/2025
Hoang Dinh Hung
Hoang Thi Minh Chau
Applicant’s ref. no:
Nil. |
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Sent 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 10/1/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13497/18/9/258/V2188, USM 13498/18/9/259/V2189
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3495-6/18 (Formerly RBCZ 10308-9/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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