BUI VAN CHINH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1043/2021

[2026] HKCFI 2628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1043 OF 2021

Application for leave to apply for judicial review

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

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

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 23 July 2021, 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 9 July 2021 (“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/2021/HCAL001043_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 December 2020 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.  The applicant named the Board/ Non-refoulement Claims Petition Office as the putative respondents in Form 86, when only the Board should be so named.

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

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by a moneylender named Tran Van Tien (“Tran”) and his men due to his inability to repay the loans obtained from Tran.

Disposal on paper

8.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Hence, the Leave Application is dealt with on paper.

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 his intended judicial review in Form 86, nor in his supporting affirmation dated 23 July 2021.  In his affirmation, the applicant merely stated that he had no knowledge about English so he did not know how to proceed with his application for judicial review, and he did not have the financial means to obtain concrete legal advice regarding the procedure of appeal.

Discussion

11.  First of all, from what the applicant stated in his affirmation, he seemed to rely on the lack of language and legal assistance as his grounds for judicial review.

12.  Regarding his complaint of the lack of legal assistance, a lawyer from the Duty Lawyer Service did assist the applicant in the first tier of the screening process when the Director assessed his non-refoulement claim.

13.  The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37).  Thus, there is no substance in this allegation.

14.  Likewise, it is trite that the high standards of fairness required by law would not entail an interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). Moreover, it is noted that all the documents filed by the applicant in relation to the Leave Application were written in English.  It indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed.  The applicant cannot claim that he has been prejudiced at all.

15.  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).

16.  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 as aforesaid.

17.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 29 April 2021 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

18.  As can be seen from the Board’s Decision, the Board did not find the applicant to be a credible witness.  Based on the totality of the evidence and taking into account of all the findings, the Board found that there were fatal discrepancies in the applicant’s story and the centerpiece of his story could not stand.

19.  In gist, the Board found that the applicant showed that he had very little knowledge about the legal requirements for running a commercial fishing boat in Vietnam.  Further, in view of the applicant’s background, employment history, his monthly income before starting the business, the lack of basic knowledge and details relating to the business, the Board did not accept that the applicant could borrow a huge sum of 2 billion Vietnamese Dong from the moneylender to buy a new fishing boat for his business in Vietnam.

20.  The Board had no doubt that the applicant’s alleged running of the business and his borrowing money were fabrication, and it followed that his story of harm and ill-treatment from the moneylender was also fabrication.  The applicant’s claim was rejected in its entirety.

21.  The Board also found that, even if the applicant’s story was accepted, the applicant still could not succeed in his claim for non-refoulement protection.  The harm by the moneylender could not attain the minimum level of severity.  The moneylender was a non-state actor and there was no evidence of state acquiescence in the alleged ill-treatment of the applicant.  The applicant’s dispute with the moneylender was a private dispute.  The applicant’s fear of the moneylender was not for a Convention reason.

22.  Moreover, from objective country of origin information (“COI”), the Board found that there was sufficient state protection in Vietnam.

23.  Further, the Board found that internal relocation was a viable alternative for the applicant.  There was no evidence to show that the moneylender had the resources and power to locate the applicant had he moved to stay and live in provinces or cities other than his own.  The Board considered that it was not unreasonable or unduly harsh for the applicant to relocate to a place of his own choice in Vietnam to avoid any perceived threat from the moneylender upon his return to Vietnam.

24.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

25.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

26.  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. 

27.  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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

28.  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

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