PHAM VAN DAI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 491/2021

[2026] HKCFI 305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 491 of 2021

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 9 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 31 March 2021 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 28 December 2020.

2.  I amend the Form 86 on my own motion to name the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same.  When asked, he said he had nothing to add.

Background

4.  The Applicant is a Vietnamese national.  In gist, due to his grudges with the property developer and the local police in Ben Tam Ward, he feared that he would be harmed or killed should he be refouled to his home country.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink.[1]  I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not state any grounds on which the relief is sought, other than stating in his supporting affirmation that, “…Am I refouled to Viet Nam, I will be faced a genuine and substantial risk of being subject to torture or even killed by Vietnamese police and the gangsters since I took part in the protest…”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. 

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [53-92].  It is pertinent to note that the TCAB, for the purpose of the appeal below, accepted the centerpiece of his account, namely, that he did have grudges with the property developer and the local police in Ben Tam Ward [52]. Having considered, most importantly, the extensive country of origin information [55‑70], the TCAB was entitled to come to the conclusion that “the Vietnamese has already tried their best to combat corruption, illegal moneylending, and improve police professionalism.  In this regard, reasonable protection of the country of the Appellant’s nationality is available, and there is no ground based on well-founded fear for refusing it”.  Similar conclusions were drawn in respect of the other applicable grounds for like reasons [73, 74, 77-81, 84-91].  It is also relevant to note that, on the Applicant’s case, the provincial government did take action to protect the villagers’ rights, and the state appeared both willing and able to offer effective protection [10, 84, 64]. The matters stated in the supporting affirmation had been comprehensively considered and dealt with by the TCAB.

10.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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