VU VAN MINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1384/2020

[2025] HKCFI 3434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1384 of 2020

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the name of the Putative Respondent be amended to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office; and

b.  the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 3 July 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 23 June 2020 (the “Board’s Decision”).

2.  To ensure that that Board is correctly named and following the usual practice that the Director of Immigration (the “Director”) should be a proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 22 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. To put it briefly, the Applicant’s case is that he will be subject to serious harm if he returns to Vietnam because he was persecuted by the Vietnam government for his religious belief and for his activities as a Christian pastor.

Discussion

5.  The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non‑refoulement cases, the Court adopts a high standard of fairness to examine the Board’s Decision with anxious scrutiny due to the seriousness of the subject matter, the Court should not usurp the fact-finding role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, availability of state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

6.  Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary, see Re Zunariyah [2018] HKCA 14, at §23.

7.  It is trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J (as he was then) at §142. However, the Applicant did not provide any specific grounds demonstrating a reviewable error his Form 86 or affirmation in support.

8.  Having reviewed the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality. There is no indication that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

9.  I am also not satisfied that the Applicant has demonstrated an arguable case that the Board’s decision was unreasonable in the enhanced Wednesdbury sense. Having analysed the Applicant’s evidence in detail (§§3.2-5.8) and relevant COI (§5.9), the Board was plainly entitled to form the view that the Applicant would not be subject to any material risk of serious harm in Vietnam because there was no serious and widespread persecution of Christians in Vietnam and in fact religious activities were allowed even on the Applicant’s own evidence (§§3.4, 5.10-5.11). There was also no medical evidence to support the Applicant’s account as to the injury he suffered and that he continued to hold gatherings despite his claim of frequent police harassment and in any event, even if his factual account was truthful, the injury he sustained was only minor (§§3.1-3.6, 5.1-5.3, 5.10).

10.  The Board also quite properly took into account the fact that the Applicant only sought protection after he was arrested in Hong Kong (§§5.5-5.6). It was also noted by the Board that the Applicant was able to travel outside of Vietnam for pastoral activities in Africa without any difficulty originating from the authorities (§5.10(h)).

11.  For completeness, during the Hearing:-

(1)  I questioned the Applicant extensively about his overseas trip to Africa and he told me that he was one of the two pastors chosen to participate in a program organized by his local Baptist church organization in Vietnam which had connections to overseas Baptist organisations. When asked about how frequent such programs were held, he told me that it was not fixed and could be held every year or every few years. In my view, this is consistent with the Board’s finding that regular and organized Christian religious activities were at least generally tolerated by government authorities in Vietnam.

(2)  The Applicant also brought up the issue of lack of supporting documents for his claim. His first explanation during the Hearing was that he was unable to bring his supporting documents when he left Vietnam. However, when he was asked why he did not seek to obtain assistance from members of his former congregation (with whom he still maintained contact[2]) for documents, the Applicant then immediately offered another explanation, claiming that the police in Vietnam would not provide any document to the Applicant after he was detained because the Vietnam police did not want the Applicant (or others in his position) to make use of the police documents as proof of persecution to seek humanitarian assistance outside Vietnam. The second explanation does not sit well with his first explanation which presupposes that supporting documents were available in Vietnam. Again, the Applicant’s unsatisfactory explanation appears to lend support to the Board’s rejection of the Applicant’s claim.

12.  Hence, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I decline to grant leave for judicial review.

Conclusion

13.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be 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