TRAN BA TAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1742/2020

[2025] HKCFI 4471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1742 of 2020

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

Following;

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

1.  The Applicant’s Form 86 be amended to name only the TCAB as the putative respondent and the DOI as a putative interested party; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 31 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 2 July 2020, which affirmed a decision by the Director of Immigration (the “DOI”) dated 7 September 2017 in refusing the Applicant’s non-refoulement protection claim. He named the TCAB and the DOI both as proposed respondents and left blank the section for interested party.

2.  I amended the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as a putative interested party.

3.  The Applicant did not request for a hearing and this application is to be dealt with on paper.

Background

4.  The Applicant is a national of Vietnam. He seeks non-refoulement protection on the basis that if he was returned, he would be harmed or killed by his creditor, whom he had borrowed money from to pay bribes to the police due to false charges pressed against him after he protested against the local government over land disputes. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  In his affirmation filed in support of this applicant, apart from stating that he did not agree with the TCAB Decision, the Applicant did not point to any particular error of law, procedural unfairness or irrationality therein.

7.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, and all materials placed before it [4-42], including the Applicant’s testimony at the hearing before it [48-68] and relevant COI [92-95]. After applying the correct approach in assessment [69-78] and assessing the Applicant’s credibility, the TCAB came to the finding that the Applicant’s allegations were not made out [79-91].

8.  The TCAB had in mind the correct principles in respect of each of the four applicable grounds under the USM and came to the conclusion that none was made out [123-147].

9.  The TCAB further concluded that both state protection [96-111] and internal relocation [112-122] were available to the Applicant.

10.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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