VU QUOC TUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 365/2020

[2025] HKCFI 2902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 365 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Vu Quoc Tung (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 15 January 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 14 January 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Vietnamese. His background and the particulars and procedural history of the Claim are set out in the Board’s Decision, which can be viewed in the following link:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000365_2020_files/the_Board's_Decision.pdf

3.  The Applicant claimed that his creditor (“Creditor”) and police in Vietnam would harm or kill him if he were to return to Vietnam.

4.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 ("Ordinance");

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

Legal principles applicable to judicial review

5.  In a judicial review, the court does not step into the shoes of the decision makers.

6.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] materials and 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 or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

7.  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 reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

8.  In the Form 86 filed herein on 10 March 2020 (“Form 86”), the Applicant named the Board as proposed respondent and the Director as the interested party. He did not put forward any ground for his intended judicial review in the Form 86.

9.  In the supporting affirmation also filed on the same day (“Supporting Affirmation”), the Applicant exhibited the Board’s Decision but did not put forward any ground for his intended judicial review.

10.  The Applicant and his mother (§33 of the Board’s Decision) testified at the hearing before the Board. For reasons set out in §8 of the Board’s Decision, the Board concluded that the Applicant’s appeal should be dismissed.

11.  In §§49-110 of the Board’s Decision, the Board analyzed the Applicant’s evidence. The Board found the Applicant’s testimony inconsistent with his statements to the Director (§102 of the Board’s Decision) and other documents issued by government. It also found the Applicant’s story to be internally inconsistent.

12.  The Board found the Applicant’s evidence unreliable and completely rejected his claims. The Board did not accept that the Applicant was ever threatened or assaulted or that he came to Hong Kong due to fear for his life and safety. The Board found that there was no factual basis to support claims under any of the applicable grounds of the USM.

13.  In rejecting the Applicant’s contention that he had no identification document in Vietnam, the Board considered the relevant country of origin information (“COI”) materials and various other documents, including a Vietnamese passport used by the Applicant to enter Hong Kong on two occasions. (§§29-30, 34, 43 and 47-48 of the Board’s Decision) The Board was satisfied that the Applicant was a Vietnamese national (§§22 and 50-53 of the Board’s Decision).

14.  The Board further found that even if the Applicant’s claim were accepted to be true, he could still obtain Vietnamese citizenship because his mother was a Vietnamese citizen. The Applicant should have no problem in applying for identification documents in Vietnam and his fear of being harassed by the police for lack of identity would no longer subsist. (§116 of the Board’s Decision)

15.  The Board also found that the Applicant failed to give any good reason for not seeking non-refoulement protection in his first visit to Hong Kong or his application for extending his stay in Hong Kong (§§108-109 of the Board’s Decision). After careful consideration of all available evidence, the Board also rejected the Applicant’s claim that he had been attacked by the Creditor.

16.  The Board further noted that under the Applicant’s own account, he was never seriously injured by the Creditor. It considered that the attacks by the Creditor were not serious enough to exceed the requisite threshold of a minimum level of severity for seeking non-refoulement protection (§117 of the Board’s Decision).

17.  Lastly, the Board found that state protection was available (§§121-136 of the Board’s Decision) and internal relocation to Ho Chi Minh City or Da Nang would be viable (§§165-170 of the Board’s Decision).

18.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

19.  The Applicant attended the court hearing of 29 May 2025 (“Court Hearing”). He said that he had provided all available documents to the Board. He said that he was born in Hong Kong and there was no need for the Director to ask for further evidence. He confirmed at the Court Hearing that he did not identify any error of law, procedural unfairness or irrationality in the Board’s Decision.

20.  The fact that the Applicant was born in Hong Kong is not a ground for seeking non-refoulement protection. No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

21.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

22.  In §§137-164 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.

23.  The Board did not accept that the Applicant had been threated or assaulted in the past and found no factual basis on which to find a risk of torture on his return. As such, substantial grounds for believing that the Applicant would be in danger of being subjected to torture if he were removed to Vietnam were not established and his torture claim under the Ordinance was rejected.

24.  The Board also found no factual basis on which to find either a “real” or an “immediate” risk to the Applicant’s life on his return to Vietnam. The Board further found that the Applicant would not be arbitrarily deprived of his life in violation of BOR 2 upon his return to Vietnam.

25.  The Board found no factual basis on which to find a risk of the Applicant being subjected to the BOR 3 risk or to establish a “well-founded fear” of persecution on his return to Vietnam.

26.  The Board further found that in any event state protection was available and internal relocation viable on the Applicant’s return to Vietnam.

27.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM. These were findings of fact exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

28.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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