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HCAL 1035/2021
[2026] HKCFI 2385
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1035 OF 2021
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BETWEEN
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Pham Van Chung |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
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 21 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 7 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/HCAL001035_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s application for non-refoulement protection was not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 September 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, when only the Board should be named as 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 putative 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 his creditor, Mr Tuyen, due to his inability to repay a loan borrowed from Mr Tuyen.
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 valid ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 21 July 2021. In his affirmation, the applicant merely stated that he had no knowledge of English and hence he did not know how to proceed with his application for judicial review. He also stated that 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, it seems that the applicant is complaining about the lack of language and legal assistance.
12. In respect of the applicant’s complaint that he lacked the financial means to obtain concrete legal advice regarding the procedure of appeal, this court notes that the applicant was actually provided with legal assistance during the first-tier screening of his non-refoulement claim. The Court of Appeal has repeatedly emphasized 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.
13. Likewise, it is trite that the high standards of fairness required by law would not entail 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).
14. In fact, all the documents filed by the applicant in relation to the Leave Application were written in English. This 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. Thus, none of the applicant’s complaints in his affirmation constitutes a valid ground to challenge the Board’s Decision.
16. 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).
17. 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.
18. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 8 June 2021. The applicant was present and was given the chance to present his case to the Board in person.
19. As can be seen from the Board’s Decision, the Board had duly considered the applicant’s claims and accepted that the applicant borrowed money from a money lender named Mr Tuyen in 2018 and he was not required to provide any collateral for the loan but was required to pay exorbitant monthly interest. However, the Board was not satisfied that the applicant borrowed an amount as high as 1 billion Vietnamese Dong.
20. During the course of the Board’s hearing, the Board found that the applicant had failed to provide a consistent account of the incidents in which he claimed to have been harmed. The significant discrepancies in his accounts and the fact that the applicant did not mention that he was mistreated by the police (which was the most serious claimed incident) led the Board to conclude that the applicant had exaggerated the treatments he received from Mr Tuyen. The Board did not accept that the applicant was seriously harmed because of the loan prior to his departure from Vietnam.
21. The Board considered that the harm suffered by the applicant in the past did not reach a minimum level of severity required for international protection. The applicant’s fear from the creditor was not for any Convention reasons.
22. Moreover, the Board found from country of origin information (“COI”) that although loan shark activities were common in Vietnam and corruption did exist in the police force, the Vietnamese government had undergone reforms to combat police corruption and the authorities in Vietnam were taking steps to crack down on violence perpetuated by private money lenders. The Board was of the view that the applicant would be able to obtain the assistance of the police.
23. The Board also found that there should be viable options for the applicant to settle at an alternative place in Vietnam. There was no evidence to show that Mr Tuyen would have the resources or means to locate the applicant anywhere in Vietnam. The Board was satisfied that the applicant, being young with considerable work experience in the construction industry, could relocate to another place in Vietnam, obtain employment, and avoid any risk of harm from Mr Tuyen upon his return to Vietnam, and it would not be unduly harsh for the applicant to do so.
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.
Dated the 29th day of April 2026
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( Gladys LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 29/04/2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 29/04/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17268/20/10/17/V2587
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 339/20 (formerly RBCZ 10286/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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