TRUONG VAN TAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 219/2022

[2026] HKCFI 2389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 219 of 2022

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, naming only the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 19 April 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 11 January 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 1 December 2020 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant attended the oral hearing scheduled before me and indicated that he had nothing else to add.

Discussion

4.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision. The primary decision makers are the Director of Immigration (the “Director”) and the Board. Though in non‑refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, 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 error of laws, procedural unfairness or irrationality in the decision of the Board. [2]

5.  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation.[3]  Apart from repeating the background leading to the Leave Application, the Applicant provides the following grounds which can be summarized as follows:-

(1)  “The Applicant was able to provide hospital documentation to prove he was attacked on 4 July 2020 in Hong Kong. Thus, if he returns to Vietnam, it is entirely possible that he will be attacked, tortured and murdered. Because in Vietnam, Thinh’s subordinates are all gangsters… there are many ways to kill the Applicant and bypass he law. Moreover, the gangsters are still very angry because their friend is dead, so they will definitely have the intention of revenge.”

(2)  “The Applicant was able to provide evidence to prove he was wanted for Vietnamese police for murder. Although he has not been specifically convicted by a Vietnamese court, in his case, he is fully capable of having aggravating circumstances leading to a death sentence.”

(3)  “The Decision of the Adjudicator is clearly unsafe. It is also wrong for the Adjudicator to rule the Applicant as unreliable.”

(4)  “The Director of Immigration’s decision to refuse the Applicant’s claim was also wrong.”

(5)  “The Applicant is now applying for the Legal Aid.”

6.  I have scrutinized the Board’s Decision carefully and come to the view that none of the aforesaid grounds can be established or considered as valid or effective public law grounds.

7.  First, the fact that the Applicant had applied for legal aid is completely irrelevant. In any event, his application for legal aid had already been refused.

8.  Second, the remaining grounds merely consist of generic, vague and/or unparticularized assertions without reference to any underlying facts or matters establishing why, how and where each of those complaints arise in relation to the Board’s Decision. General assertions without particulars are not effective grounds and cannot assist the Applicant.[4]

9.  In particular, the Board had duly considered the evidence referred to by the Applicant in his grounds. As a matter of fact-finding exercise, the Board accepted that (1) the Applicant is wanted by the police service in Vietnam on suspicion of causing or contributing to, the death of Thinh; and (2) the medical evidence submitted suggests the Applicant was assaulted in Hong Kong on 4 July 2020. However, the acceptance of such evidence cannot in any way suggest it was wrong for the Board to reject the Applicant’s assertions and the basis of his claim.

10.  The Board was acutely aware of the Applicant’s claim is based upon his fear that upon return to Vietnam, (1) he will be harmed or even killed by the triad members of Thinh because of his involvement in his death; and (2) there is a Wanted Decision against him in Vietnam such that he will be arrested, convicted without a fair trial and sentenced to death.

11.  The Board had duly assessed the material facts and evidence available including the COI materials, the testimony of the Applicant as well as extension submissions provided by both the Applicant’s legal representatives and the Director’s legal representatives. The Board was entitled to find (1) the Applicant does not face a real risk of harm either at the hands of Thinh’s subordinates, of triad members, or at the hands of bribed police; (2) there is not a real risk of the Applicant sustaining serious harm or otherwise being mis-treated during his detention, charging and prosecution in Vietnam. Nor is there a real risk that the Applicant will face procedural errors or that his trial and all trials in Vietnam will be unfair or misdirected; and (3) there is also not a genuine and substantial risk or a real risk that the sentence of death will be imposed on him should be convicted as claimed.

12.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim. The Board’s Decision is comprehensive with adequate reasons provided. It was simply entitled to come to the conclusions it did and reject the Applicant’s claim.

Conclusion

13.  Accordingly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[5]  I 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