HOANG DUC NGAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1386/2020

[2025] HKCFI 3433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1386 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent at the hearing in open court;

1.   Form 86 be amended on the court’s own motion as follows:-

a.   The name of the putative respondent be amended to Torture Claims Appeal Board /  Non-refoulement Claims Petition Office; and

b.   the Director of Immigration be named as the Putative Interested Party.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 3 July 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 12 June 2020 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named both the Board and the Immigration Department as the proposed respondents and the proposed interested parties.  As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant.  It took place before me on 22 July 2025 (the “Hearing”) and the Applicant was absent.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.  The gist of the Applicant’s case is that, if he were to return to Vietnam, he would be subject to ill-treatment or even be killed by his creditor and the creditor’s associates (the “Adversaries”).

Discussion

5.  The applicable legal principles relating to this type of applications are well established.  The judicial review is not a further avenue of appeal.  Though in non‑refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (“COI”) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

6.  Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23).

7.  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.  Clearly, the Applicant has failed to comply with this requirement, as neither the Form 86 nor the affirmation in support set out any grounds of review other than a general assertion that he could not go back to his home country because his life would be in danger.

8.  Notwithstanding the Applicant’s absence at the Hearing, I have rigorously examined the Board’s Decision, the papers and the evidence with anxious scrutiny.  I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness:-

(1)  Having considered his evidence, the Board reached the conclusion that the Applicant’s factual account of being indebted to his alleged Adversaries was not believable, taking into account the glaring lack of documentary evidence for the Applicant’s alleged business and his unconvincing explanation as to how he could not obtain these documents. (§§15-24).  I see no reason to interfere with the Board’s finding that the Applicant did not face any real risk of harm (§25).

(2)  Without prejudice to the above, the Board was also plainly entitled to find that reasonable state protection and internal relocation alternatives were available, having considered relevant COI and personal background of the Applicant.  The Applicant’s conflict with the Adversaries was in essence a private financial dispute.  There is also no evidence to suggest that the Adversaries would have the ability to locate the Applicant in Vietnam, bearing in mind that Vietnam is a large country (§§26-31).

9.  In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

Conclusion

10.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be 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