NGUYEN CHI TONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 965/2020

[2025] HKCFI 1938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 965 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

1.  On this court’s own motion, “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 22 May 2020, 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 2 March 2020 (“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/2020/HCAL000965_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant did not face any real risk under the Unified Screening Mechanism (“the USM”) if he were to be refouled back to Vietnam, and even if that was wrong, he could avoid such risk by internal relocation within Vietnam. Hence, the Board dismissed the applicant’s appeal and confirmed the decision of the Director of Immigration (“the Director”) dated 8 November 2016, which refused the applicant’s claim for non-refoulement protection.

Amendment

3.  In Form 86, the applicant did not name any putative interested party when the Director should be so named. This court therefore makes an order on its own motion to add “Director of Immigration” as the putative interested party.

The applicant’s case

4.  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.

5.  In sum, the applicant claimed for non-refoulement protection because he would be harmed or even killed by his creditors if he were to be refouled to Vietnam, as he was unable to settle the outstanding debts owed to them.

Oral hearing

6.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 6 May 2025.

7.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing and to proceed to determine the leave application on its merits.

8.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

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 21 May 2020. The applicant merely stated in the affirmation that he did not agree with the Board’s Decision, which is not a ground for judicial review at all.

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.  In assessing the appeal by the applicant, the Board held an oral hearing on 30 April 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 his evidence and questioned the applicant for details.

13.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found that the applicant’s evidence had significant inconsistencies and were illogical and unreasonable in many fundamental aspects of his claims. As such, the Board concluded that the applicant’s evidence was not his own personal experience and was unreliable. In any event, the alleged injuries resulted from the attacks were not serious and did not attain a minimum level of severity.

14.  In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information (“COI’) for the applicant’s country from different sources. While noting the problem of corruption and the widespread of illegal loan shark activities in Vietnam, there was evidence from reliable COI that showed the authorities has enhanced their action in cracking down loan sharks and further to proactively prevent and strictly handle loan shark related crimes. The Board considered that the applicant should be able to obtain assistance from the police and authorities if he needed it. The applicant’s assertion that the police would not help him was just the applicant’s speculation, as the applicant has never sought assistance from the police when he was in Vietnam.

15.  As to the viability of internal relocation for the applicant, the Board found that the applicant’s feared threats from his creditors was a localized one, which could be reduced or negated by internal relocation. The fact that the applicant had stayed twice in Ho Chi Minh City without being located by his creditors supported this finding. There was no evidence to show that his creditors had the resource or influence to locate him anywhere in Vietnam. The applicant also had more than 10 years of work experience both as an employee and a self-employed person. Hence it would not be unduly harsh or unreasonable for the applicant to relocate to other parts of Vietnam.

16.  The assessment of evidence, country of origin information and risk of harm were primarily within the realm of the Board. In view of the evidence available, the Board found that there were no substantial grounds for believing that he would be subjected to torture if he were to be sent back to Vietnam. The Board is entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

17.  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. 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.

18.  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. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

19.  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