TRAN VAN KHANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 809/2022

[2026] HKCFI 3228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 809 of 2022

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 in open court;

1.  On the Court’s own motion, the date of the decision in respect of which relief is sought be amended to ‘17 June 2022’; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 22 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 22 July 2022 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection (the “Notice”). From the documents discovered from the Board and the Director, it is obvious that the decision which he is seeking to review is the Board’s decision dated 17 June 2022. Hence, on its own motion, the Court amended his Form 86 by amending the date of the decision in respect of which relief is sought to ‘17 June 2022’.

2.  The Applicant had requested an oral hearing. A hearing on 18 May 2026 was scheduled for him and notice of hearing was sent to him by post to his address as stated in his Form 86 and the address discovered from the Immigration Department on 13 March 2026. Neither of the notices has been returned through the post. The Applicant had never informed the court of any change of address. There is nothing to suggest that he had not received the notices. A court staff attempted to contact him on his telephone number provided by him and his telephone number obtained from the Immigration Department on the afternoon of 15 May 2026 to remind him of the hearing. The calls were not answered. The Court is satisfied that the notice of hearing had been validly served on him and that it had done all it could to bring the hearing to his notice. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Background

3.  The Applicant is Vietnamese national, now aged 38. He was arrested by the police on 16 December 2020. He claimed to have sneaked into Hong Kong on 26 November 2020 from Mainland China. He filed a non-refoulement claim form dated 5 May 2021. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, he claims he will be harmed or killed, if returned to Vietnam, by a moneylender for being unable to repay his loan borrowed from the moneylender.

5.  The Applicant’s claim as set out in his NCF is as follows. He claimed that in September 2019 he borrowed 600 million Vietnamese Dongs from a moneylender with triad background at a monthly interest rate of 30 million Dongs to treat his wife’s illness. Since April 2020, he was unable to pay interest. In April 2020, he was assaulted by the moneylender’s men and given two months’ extension of time to pay. In June 2020, the moneylender’s men went to his home to look for him. He hid behind the house. The men threatened his parents that they would kill him when they located him. In October 2020, the moneylender’s men kidnapped him from outside the company where he worked. They took him to a field and assaulted him, including using a knife. He was forced to sign an undertaking to repay 810 million Dongs within ten days. The Applicant was hospitalized for a week. After his discharge from hospital, he hid himself in another city in Yenbai province and then left Vietnam for Mainland China on 5 November 2020. Then he sneaked into Hong Kong.

The finding of the Board

6.  The Board considered the Applicant’s case generally consistent with the documents he submitted and accepted his evidence. However, it found on the basis of the evidence that the injuries suffered by the Applicant did not attain the minimum level of severity, that the moneylender had no intention to seriously harm or kill the Applicant and his intention was to force the Applicant to repay the outstanding debt. It found there is no genuine and substantial risk that the Applicant will suffer severe pain or harm, or be killed or be subjected to ill-treatment. It found on the basis of authoritative and credible country of origin information (“COI”) that the Vietnamese authorities will be willing or able to afford protection to the Applicant if he seeks assistance and that he could avoid the harm and risk of harm by relocating to other areas in Vietnam and it would be very difficult of the moneylender to trace him. Applying the law applicable to non-refoulement protection, it found the Applicant had failed to prove his entitlement to protection under any of applicable grounds under the Unified Screening Mechanism. Hence, it dismissed his appeal.

7.  Hence, it dismissed the Applicant’s appeal against the Director’s Notice.

Legal principles applicable to judicial review

8.  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[6].

Grounds for judicial review

9.  The Applicant has not advanced any grounds of application in his Form 86 or supporting affirmation. In the absence of any particularized grounds of application, the Court could only examine the Decision for errors of law, procedural unfairness or irrationality in the Decision.

Overall scrutiny

10.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s case as he asserted. It also found on the basis of COI that adequate state protection is available and the Applicant could further avoid his risk of harm by internal relocation.

11.  Applying the law applicable to non-refoulement protection, it found the Applicant had failed to prove his entitlement to protection under any of applicable grounds under the Unified Screening Mechanism. The Board’s findings are mixed finding of the law and of the facts. It gave brief but adequate reasons for its finding. On the evidence, it was open to the Board to make those findings as it did. Insofar as its finding are finding of the law, it is absolutely correct. Insofar as its finding are finding of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant had failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

12.  For these reasons, the leave application as amended is refused.

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