HA THANH NGUYEN aliases TRAN MANH CUONG & HA ANH TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3820/2019

[2025] HKCFI 1696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3820 of 2019

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.      The Form 86 is amended on the Court’s own motion; and

2.      Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.  By a Form 86 filed on 23 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Torture Claims Appeal Board (the “TCAB”) dated 5 June 2018 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 1 September 2016 and 31 July 2017. He named the TCAB as the proposed respondent as well as an interested party.

2.  I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as an interested party.

3.  The Applicant requested for a hearing and he attended the same.

Background

4.  The Applicant is a national of Vietnam. He seeks non-refoulement protection on the basis that his coal mine business partner in Vietnam threatened to kill him if he does not compensate this business partner for the loss. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.  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 TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI 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 TCAB (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 & Anr (2007) 10 HKCFAR 676).

6.  In his affirmation filed in support of the Form 86, the Applicant only repeated his factual basis for claiming protection and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  At the hearing, he reiterated the alleged fear for life and his family situation in Hong Kong, which were all before and considered by the TCAB [1].

8.  As indeed, as can be seen from the TCAB Decision, the Applicant failed to attend the oral hearing before the TCAB [6] and did not respond at all to the TCAB’s invitation for him to explain his absence [7-8]. The TCAB then decided to proceed with the Applicant’s appeal on paper.

9.  The TCAB was presented all the written evidence available [10-24] and carefully considered the same [26-44].

10.  The TCAB then analysed all the evidence in the context of the four applicable grounds under the USM, applying the correct legal principles in each instances, and came to the conclusion that none of them was made out [46-64].

11.  As such, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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