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HCAL 3510/2019
[2025] HKCFI 5095
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3510 OF 2019
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BETWEEN
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Pham Van Dung |
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”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 18 October 2019”.
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 15 November 2019 and filed on 26 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 18 October 2019 without identifying the decision maker.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 18 October 2019 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 January 2018 (“the Director’s Decision”). Thus, it is clear that the applicant was referring to the Board’s Decision in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003510_2019_files/the_Board's_Decision.pdf
3. The Board found that the applicant failed to establish his claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision.
Amendments
4. In Form 86, the applicant named the Director and the Board as both the putative respondents and the putative interested parties, when the putative respondent should only be the Board and the putative interested party should only be the Director.
5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”.
6. As mentioned, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision, and it is so amended on this court’s own motion.
The applicant’s case
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Vietnam, the moneylender to whom his father owed 700 million Vietnamese Dong would harm him.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 29 August 2025.
10. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
11. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
12. 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).
13. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 26 November 2019. The applicant merely stated in his affirmation that he disagreed with the Board’s Decision and he could not go back to Vietnam as his life would be in danger over there.
Discussion
14. 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).
15. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
16. In assessing the appeal by the applicant, the Board arranged an oral hearing on 26 August 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
17. As can be seen from the Board’s Decision, the Board gave very detailed analysis and reasoning in rejecting the applicant’s claims. The Board found that the dispute with the moneylender was only a private monetary dispute between his parents and the moneylender. It was in fact the applicant’s father, not the applicant, who took out the loan.
18. The Board also found that the moneylender had never seriously harmed the applicant, the injuries that the applicant suffered did not reach a minimum level of severity and the applicant was not tortured physically or mentally.
19. The applicant departed Vietnam in 2015, and there was no evidence to show that the moneylender would still have any adverse interest in the applicant after he had left Vietnam. The applicant also failed to provide evidence to show that he would still be targeted by the moneylender upon his return to Vietnam.
20. There was also no evidence that the moneylender was in any way related to the Vietnamese authorities. The applicant had never reported the threat or attack from the moneylender to the police or authorities. There was no evidence to show that the Vietnamese police would not offer assistance to the applicant should he need it. Thus, the Board considered that even if the moneylender would still be looking for the applicant when he returned, reasonable state protection would be available to him.
21. Given its findings as outlined above, the Board adopted the well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). Hence, the Board considered that it was unnecessary to make findings on the viability of internal relocation for the applicant.
22. The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
23. 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.
24. 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
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 31st day of October 2025
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( Irene 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 the applicant’s 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:
31 October 2025
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: 31 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 10116/18/1/389/V1970
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3579/17
(formerly RBCZ 11871/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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