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HCAL 349/2022
[2025] HKCFI 4691
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 349 OF 2022
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BETWEEN
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Nguyen Thanh Tuan |
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 (Ord 53 r 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 to withdraw the application for leave to apply for judicial review be refused.
3. 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 16 May 2022, 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 May 2022 (“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/2022/HCAL000349_2022_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 26 February 2021 (“the Director’s Decision”).
Amendments
3. In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the 1st putative respondent, the Director as the 2nd putative respondent and did not name any putative interested party.
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. The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.
6. This court therefore 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
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 receive ill-treatment from a loan shark and his life would be in danger due to his inability to repay a loan of 400 million Vietnamese Dong and its related interest to the loan shark.
Withdrawal of the Leave Application
9. On 13 May 2025, the applicant filed an ex parte application by way of an affirmation dated the same date, in which he applied to withdraw his application for judicial review and to cancel his case because it was safe for him to return to Vietnam. He also confirmed that the application was made out of his own free will and he understood the consequences of cancelling Form 86, namely that he was bringing the Form 86 to an end even though the merits of which had not been determined, and the decision that he had appealed against would remain in force.
10. The applicant also filed a letter addressed to the Registrar of the High Court on the same date, stating more or less the same contents.
11. The Director sent two letters dated 29 August 2025 and 3 September 2025 respectively to inform the court that the applicant applied to withdraw his non-refoulement claim. In the letter dated 3 September 2025, the Director also enclosed a letter dated 8 July 2025 from the applicant, which stated that the applicant wanted to return to Vietnam as his problem in Vietnam was resolved, he had no money to buy air ticket and he wanted to withdraw all his non-refoulement claims including appeal/judicial review.
12. Thus, there is no doubt that the applicant is applying for withdrawal of the Leave Application.
13. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though he had previously requested one.
14. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
15. Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.
Grounds for judicial review
16. 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).
17. The applicant annexed a document titled “Grounds on which relief is sought” to his Form 86. The relevant contents of the document are reproduced as follows:
“7. The Director of Immigration suggested that I change another location to live to avoid the pursuit of my creditor and gangsters, but that is completely unfeasible. There will be many difficulties and obstacles that I will have to face in the new location. My health is not good, I am also not an active person are another factor that may disadvantage me in the labour market. There is no guarantee that I will be able to adapt to the new place and find a job to earn money to support myself.
8. Moreover, with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out my new residence. So, I can be very dangerous if I tries to escape to another place in Vietnam.
9. I was beaten and harmed by gangsters. It can be shown that it is entirely possible in the future that I will continue to be tortured, beaten, or even killed if the gangsters are too angry and cannot control their emotions and their behavior. Because the creditors and gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent. They disregard the law and are willing to kill people to satisfy their anger and ferocity.
10. The Decision of the Adjudicator is clearly unsafe. It is also wrong for the Adjudicator to rule the Applicant as unreliable.
11. The Director of Immigration’s decision to refuse the Applicant’s claim was also wrong.”
Discussion
18. The grounds as stated above are directed at both the Director and the Board. However, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).
19. Thus, this court will only consider the grounds directed at the Board in respect of the Board’s Decision. As such, only paragraph 10 of the grounds is relevant to the Leave Application. The applicant asserted in paragraph 10 that the decision of the Adjudicator was clearly unsafe and it was wrong for the Adjudicator to rule the applicant as unreliable. However, the applicant failed to identify how or why the Board’s Decision was unsafe and wrong.
20. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
21. Thus, the general assertions that the Board’s Decision was unsafe and wrong cannot help the applicant at all.
22. 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).
23. In assessing the applicant’s appeal, the Board held an oral hearing on 12 August 2021. Thus, the applicant did have a chance to present his case to the Board in person.
24. After due consideration of the evidence and the oral testimony of the applicant, the Board concluded that the applicant’s claim was not credible. The applicant’s claim based on a loan which he took out from a loan shark to start a business selling paints. He failed to convince the Board that he took out such a huge loan to start a business when he had no experience in it. The Board considered that in order for the applicant to establish a claim without any documents or evidence in support, he must at least show some understanding of the building supplies and paint business. He did not do so to any level that would convince the Board that he knew what he was talking about.
25. Despite its finding that the applicant did not face any real risk of any of the proscribed harms under the USM, the Board nevertheless referred to country of origin information (“COI”) for Vietnam to consider the availability of state protection and viability of internal relocation for the applicant. The Board found that even if the applicant had an issue with a money lender, COI indicated that he could relocate safely within Vietnam. The law in Vietnam allowed freedom of internal movement and it was common.
26. Further, COI showed that although illegal money lending was a widespread problem in Vietnam and people who were unable to repay could be subjected to ill-treatment, the Vietnamese authorities were trying to crack down on illegal moneylending with some provinces setting up special police units to address the problem. The state appeared both willing and able to offer effective protection, despite that there were reports of corruption amongst the police with impunity remaining a problem.
27. Thus, the alleged danger of and the viability of internal relocation for the applicant had both been considered by the Board.
28. The finding of facts was solely within the ambit of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
29. 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.
30. Moreover, as the applicant had confirmed that his problem in Vietnam had been resolved and it was safe for him to return there, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.
31. It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).
32. Thus, even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for him to return to his own country. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v. Secretary for Security and Another (2012) 15 HKCFAR 743).
33. It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.
34. 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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.
Conclusion
35. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 8th day of October 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:
8 October 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:
8 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17710/21/3/29/V2781
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 732/20
(Formerly RBCZ 10622/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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