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DINH VAN MANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE[Decision on Leave Application]
DINH VAN MANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE[Decision on Leave Application]
[2026] HKCFI 4687 · HCAL 373/2023
Court of First Instance
HCAL 373/2023
[2026] HKCFI 4687
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 373 of 2023
BETWEEN
| |Dinh Van Manh | Applicant |
| | | |
| |and | |
| | | |
| |Torture Claims Appeal Board / |Putative |
| |Non-Refoulement Claims Petition Office |Respondent |
| |and | |
| | | |
| |Director of Immigration |Putative |
| | |Interested |
| | |Party |
| | | |
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; |
Order by Deputy High Court Judge Andrew Li:
1. The Applicant’s Form 86 be amended to name only the Torture Claims
Appeal Board as the putative respondent and the Director of
Immigration as the putative interested party; and
2. Leave to apply for judicial review be dismissed.
Observations for the Applicant:
INTRODUCTION
1. By a Form 86 filed on 13 March 2023 (“the Form 86”), the applicant
applied for leave to apply for judicial review of a decision by the
Torture Claims Appeal Board (“the Board”) dated 1 March 2023 (“the
Board’s Decision”), which affirmed a decision by the Director of
Immigration (“the Director”) dated 23 December 2020 in refusing the
applicant’s non-refoulement protection claim. He named the Board and
the Director as the proposed respondents but neither of them was
listed as interested parties.
2. I amended the Form 86 on my own motion to name only the Board as the
putative respondent and the Director as the putative interested party.
3. The applicant requested for a hearing but he was absent at the
scheduled hearing on 13 August 2026. From the court record, the
Notice of Hearing dated 20 July 2026 was sent to an address updated
through the Immigration Department. Such updated address was,
presumably, provided by the applicant to the Immigration Department in
the first place.
4. Bearing in mind what Barma JA held in Re Abdus Salam [2019] HKCA 1091
at [19], i.e. in an application for leave to bring judicial review
proceedings, it is not essential for the applicant to attend an oral
hearing, when the applicant fails to turn up at an oral hearing he/she
had requested, it should be regarded as a decision to forego the right
to the requested oral hearing and the court can deal with the
application on paper. Applying the same logic, if the applicant
failed to provide an updated address to receive notices from the
court, it also signals a disregard of, and indeed a decision to
forego, the right of attending an oral hearing.
5. I therefore decided to proceed to deal with this application on paper
notwithstanding the applicant’s absence at the hearing.
BACKGROUND
6. The applicant is a national of Vietnam. He seeks non-refoulement
protection on the basis that if he is refouled, he would be harmed by
his creditor. His personal background, the relevant facts and
relevant procedural history have been sufficiently set out in the
Board’s Decision, which can be accessed through a hyperlink[1]. I
shall not repeat the same herein.
DISCUSSION
7. 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 Board is required given the
seriousness of the issue at hand, this court should not usurp the role
of the Board, which together with the Director 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 Board (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).
8. In the Form 86 and his affirmation filed in support of the
application, the applicant has specified the following grounds:-
1) The decisions of the Director and the Board were not reasonable
or fair in the Wednesbury sense [3];
2) The Director has “failed to appreciate or give the proper
importance or weightage to the presence of state Acquiescence”
in his decision [4];
3) The Board acted “unreasonable and was procedurally unfair by
placing too much reliance on the Country of Origin Information
(“COI”)” but failed to take into account of the applicant’s
personal background and experience. The Director “had listed
relevant COIs which support the aversions that the police in
[the applicant’s] country would not be able to protect. The
Director failed to consider or give enough weightage to that
evidence and ruled otherwise.” [5];
4) The Board “was procedurally improper and/or unfair” when
assessing whether to accept or not to accept explanations
provided by the applicant and unreasonably required the
applicant to respond to questions that he was not in a position
to offer any response [6];
5) The Director has failed to take into account of the arguments
raised by the applicant or has failed to give enough weight to
such argument before reaching his decision [7]; and
6) The Board has made a ruling to dismiss the applicant’s
appeal/petition based on findings which the adjudicator ought to
allow the appeal/petition, “thus the Decisions (sic) was
irrational” [8].
9. Insofar as the above purported grounds of review were made against the
Director (including Ground [3], [4], [5] and [7] above), it has been
held that the Director’s decision is not susceptible to judicial
review once an appeal to the Board had been pursued: See Re Raschpal
Singh [2020] HKCA 978, per Lam VP (as he then was) at §§40-41. Thus,
there is no need for me to consider them. I only need to consider the
Board’s Decision.
10. Looking at the Board’s Decision, the Board bore in mind the correct
legal principles in respect of each of the four applicable grounds
under the USM.
11. It took into consideration the applicant’s case and evidence,
including the relevant COI. It also considered the option of internal
relocation and concluded that as a viable option in the case of the
applicant.
12. After thoroughly analysing and assessing the above, the Board came to
the findings and conclusions that none of the grounds was made out and
that the applicant has failed to establish his claim on all applicable
grounds.
13. Having looked at the Board’s Decision carefully, I do not find there
was anything unreasonable in the Wednesbury sense.
14. As the allegation of failing to appreciate or failed to give
sufficient or proper weight to the presence of the state’s
“acquiescence” was made against the Director only, it cannot be made a
subject of judicial review as the Director’s Decision is not
susceptible to judicial review as explained above.
15. Further, I do not find the Board has placed too much reliance on the
COI and failed to take into account of the applicant’s personal
background and experience. To the contrary, I find the Board has
taken into account fully of the applicant’s personal background and
experience and has meticulously set out and analysed the evidence
produced by the applicant, including the oral evidence he gave at the
hearing.
16. Lastly, I do not find the Board has adopted any improper or unfair
procedures when assessing the explanations provided by the applicant.
Nor did it in my view unreasonably requested the applicant to respond
to any questions that he was not in a position to offer any response
to.
17. Despite rigorous examination and anxious scrutiny, I could not find
any errors of law, procedural unfairness or irrationality in the
Board’s Decision.
CONCLUSION
18. For the above reasons, I am not satisfied that this court should
intervene by way of judicial review. I therefore dismiss the
application.
Dated the 21st day of August 2026
| |(Cheung Ho Yat, Annson) |
| |for Registrar, High Court |
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 the Applicant’s | | |
|solicitors must: | | |
|a) serve on the |Sent to the |Sent to the Putative |
|respondent and such |Applicant on |Respondent / the Putative |
|interested parties as |21/8/2026 |Respondent’s solicitors / |
|may be directed by the | |such Putative Interested |
|Court the order |Dinh Van Manh |Parties as may be directed |
|granting leave and any | |by the Court / the Putative|
|directions given within|Applicant’s ref. |Interested Parties’ |
|14 days after the leave|no.: |solicitors on 21/8/2026 |
|was granted (Order 53, |Nil. | |
|rule 4A); | |Torture Claims Appeal Board|
| | |/ Non-Refoulement Claims |
|b) issue the | |Petition Office |
|originating summons | |Putative Respondent’s ref. |
|within 14 days after | |no.: |
|the grant of leave and | |USM 17505 |
|serve it in accordance | | |
|with Order 53, rule 5; | |Director of Immigration |
|and | |Putative Interested Party’s|
| | |ref. no.: |
|c) supply to every | |QA T/C 817/20 (formerly |
|other party copies of | |RBCZ 10693/20) (T2I99) |
|every affidavit which | | |
|the Applicant proposes | |Department of Justice, |
|to use at the hearing, | |Senior Assistant Law |
|including the affidavit| |Officer |
|in support of the | |(Civil Law) |
|application for leave | |(Civil Litigation Unit 2) |
|(Order 53, rule 6(5)). | | |
____________________________________________________________________________
Form CALL-1
-----------------------
[1]
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000373_
2023_files/the_Board's_Decision.pdf