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HCAL 799/2020
[2025] HKCFI 3791
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 799 OF 2020
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BETWEEN
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Hoang 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”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 21 April 2020”.
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 4 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 21 April 2020 without identifying the decision maker.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 21 April 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 January 2020 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim. It is clear that the applicant is seeking relief in respect of the Board’s Decision, which can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000799_2020_files/the_Board's_Decision.pdf
3. The Board found that the applicant failed to establish a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (‘the USM”). The Board thus dismissed the applicant’s appeal/petition against the Director’s Decision.
Amendments
4. The applicant named “TCAB and Immigration Department” as both the putative respondents and the putative interested parties in Form 86, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.
5. 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”.
6. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. This court therefore makes an order on its own motion to amend the decision in respect of which relief is sought accordingly.
The applicant’s case
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor Ngo Tien Dat (“Ngo”) and Ngo’s associates as he was unable to repay the debt of 300 million Vietnamese Dong he owed to Ngo.
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 the intended judicial review in Form 86, nor in his supporting affirmation dated 4 May 2020. He merely stated in the affirmation that he could not return to Vietnam and his life would be in danger if he returned there.
Discussion
11. 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).
12. Thus, the applicant cannot ask this court to re-assess the facts of his case including his alleged danger in Vietnam, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.
13. The applicant was afforded an oral hearing before the Board on 14 April 2020 and the applicant was present. The Board explicitly stated that the hearing was arranged to enable the applicant to supplement whatever facts or evidence he felt he had omitted to disclose in respect of his non-refoulement claims. However, the applicant had nothing to say to the Board after being explained the purpose of the oral hearing.
14. The Board gave detailed reasoning for its conclusion that the applicant would not face a real risk of torture, arbitrary deprivation of life or persecution upon his return to Vietnam. The Board found the applicant dishonest and some of the facts he disclosed could not be believed.
15. The Board also found that the applicant had never been tortured in Vietnam. Ngo, although being a triad as the applicant alleged, had not inflicted serious harm on the applicant. The Board found that Ngo only smacked the applicant twice and the injury he suffered was minor.
16. Further, although the Board found reliable country of origin information (“COI”) that supported the applicant’s assertion that the police and authorities in Vietnam were ineffective and corrupt, there were also objective COI stating reforms had been and were ongoing in Vietnam with positive results. Further, there were alternate avenues to seek justice in Vietnam. Hence, the Board concluded that reasonable state protection was available to the applicant should he return to his home country.
17. In addition, the Board found that Ngo’s influence, if any, was limited to Haiphong City and Halong Bay. It would be very difficult, if not impossible, for Ngo to locate the applicant in such a vast country with a huge population. The applicant could relocate to Ho Chi Minh City or Da Nang, both far away from his home area with plenty of job opportunities. The Board thus found that internal relocation was viable and not unduly harsh for the applicant, an able-bodied young person with 10 years of education and some commercial experience.
18. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI materials and risk of harm is 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.
19. Thus, the applicant’s alleged danger had been duly assessed but considered not established by the Board.
20. 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.
21. 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
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 26th day of August 2025
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( Irene 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: 26 August 2025
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: 26 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16723/20/2/1/V2435
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1056/19
(Formerly RBCZ 10802/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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