TRAN VAN KIET v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 532/2021

[2026] HKCFI 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 532 of 2021

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 the documents and the Applicant being absent 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 for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 15 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 decision of the Director of Immigration (the “DOI”) dated 6 October 2020.

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

3.  In the Form 86, the Applicant appears to have sought leave for judicial review against the DOI Decision. But the DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]). However, his supporting affirmation correctly referred to the TCAB Decision as the subject matter for judicial review (see below), and I would deal with the application on this basis.

4.  The Applicant requested for a hearing of this application. He was absent from the hearing. I see no irregularity in the notification for his attendance.

Background

5.  The Applicant was a national of Vietnam. In gist, because his failure to repay his debt, his creditor and his people threatened and injured the Applicant while the local police refused to intervene, which led to his eventual fleeing from 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

6.  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.

7.  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.

8.  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.

9.  The Applicant did not state any grounds on which the relief is sought other than stating that “…I don’t agreed (sic) the decision for torture lames (sic) appeal Board, want to filet [sic] judicial renule [sic] (JR) beculs [sic] I m in danger ove [sic] ther [sic]”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

10.  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 the applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [23-42]. In particular, the TCAB found, having taken into account the Applicant’s version of events and the country of origin information, that state production was available, and the Applicant had not sought, and should seek help, from various other organisations (even if the police refused to take up his case) [31‑34]. Further, there was no evidence that the creditor and his people had the ability to locate the Applicant in the entire Vietnam. It would not be unduly harsh for him to relocate [43-45].

11.  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