DOAN VAN THUAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2052/2024

[2025] HKCFI 5296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2052 OF 2024

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 oral submissions by the applicant or counsel in open court;

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 7 November 2024, 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 30 October 2024 (“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/2024/HCAL002052_2024_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 26 July 2024.

Amendments

3.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as well as the Director as the putative respondents, when only the Board should be the putative respondent.

4.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.

5.  The Director should not be one of the putative respondents but the putative interested party.

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and “Director of Immigration” is added 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 be killed by his creditor.

Withdrawal of the Leave Application

9.  By way of a letter dated 25 July 2025 addressed to the Registrar, High Court, together with an affirmation of the same date, the applicant applied to withdraw the Leave Application and confirmed that it would be safe for him to return to his country.

10.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application. It is therefore not necessary for this court to afford him any oral hearing for the Leave Application even though he had requested one before.

11.  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.”

12.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

13.  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).

14.  The applicant attached a document to his Form 86 and asserted 6 grounds for his intended judicial review. Many other applicants in similar applications had in fact used the contents of this document as their grounds and it is like a template for them.

Discussion

15.  All the 6 grounds listed in the document attached to the applicant’s Form 86 were very general and without any particulars related to the applicant’s own case. Some of them were directed at the Director and hence irrelevant to his challenge on the Board’s Decision. Others were directed at the adjudicator of the Board, but they only contained general allegations.

16.  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”.

17.  Thus, none of the grounds that were contained in the said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

18.  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).

19.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

20.  The applicant was afforded an oral hearing before the Board on 23 September 2024 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

21.  The Board found that the applicant’s story was internally consistent as to the loan collection incidents from the creditor, but did not accept that the Vietnamese police would not take actions to assist the applicant if he reported the case to the police officers in other police stations in the commune or to the higher authorities. The Board found that the applicant’s problem was purely a private matter relating to the dispute with the creditor on outstanding loan repayment. After considering various country of origin information (“COI”), the Board concluded that reasonable state protection was available to the applicant.

22.  Although the Board did not consider internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). Hence, it was unnecessary for the Board to consider the viability of internal relocation for the applicant.

23.  Nevertheless, the Board considered each of the applicable grounds under the USM separately and found that the applicant failed to establish any of them.

24.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

25.  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.

26.  Thus, there is no merits in the Leave Application at all.

27.  Moreover, as the applicant had confirmed that it would be safe for him to return to his home country, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

28.  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).

29.  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).

30.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review.

31.  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

32.  For reasons aforesaid, the application to withdraw the Leave Application is refused and 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