VU THANH MINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 725/2020

[2025] HKCFI 4238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 725 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and by adding “Decision of Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” before the words “9 April 2020”;

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Vietnam. By a Form 86 filed on 21 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 21 April 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision dated 9 April 2020.

2.  The Applicant did not seek an oral hearing of his application. I have hence dealt with such on the papers.

3.  The Form 86 also clearly refers to a decision of the TCAB and names the TCAB as a putative respondent. While the Affirmation does not exhibit any decision, it mentions that he wants to file judicial review against the TCAB. In that regard, there is a decision of 9 April 2020 relating to the applicant’s non-refoulement claim from the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) (“TCAB Decision”)[1]. Furthermore and as is apparent from the TCAB Decision (which abbreviations and definitions I will use unless otherwise specified herein):

a.  The Applicant claimed non-refoulement protection on the basis that if he were returned to Vietnam he would be harmed or killed by his creditor, one Vu;

b.  His claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 31 December 2019 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/Non-Refoulement Claims Petition Office (“NRCPO”), which held a hearing in relation to the Applicant’s non-refoulement claims on 27 March 2020; and

d.  The TCAB/NRCPO then handed down the TCAB Decision which rejected the Applicant’s petition/appeal.

4.  I hence take it that the Applicant was intending to refer only to the TCAB Decision, as I did and do not understand the Applicant to have sought leave to commence a judicial review of the Director’s Decision notwithstanding that the Form 86 also named the Immigration Department as both a putative respondent and putative interested party. However, if and insofar as he does so, that application stands only to be rejected and I do so given the existence and implications of the two-tier system, and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

5.  I have hence amended the Form 86 of my own motion to reflect the identity of the proper putative respondent and interested party, and the decision in respect of which relief is sought.

Background

6.  The TCAB Decision sets out the Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief, as well as his immigration and procedural history leading up to the same decision. I have briefly summarised portions thereof above, and will not repeat the contents of the TCAB Decision.

Legal Principles

7.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

8.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

9.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

10.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

11.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

12.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history (Paragraphs 1 to 5) then outlined the four relevant bases of risk with reference to relevant principles (Paragraphs 6 to 17). It summarised the facts of the Applicant’s case (Paragraph 18), before moving on to the conduct of the oral hearing and its evaluation of the facts of the Applicant’s case (Paragraphs 19 to 21). In the latter section, it found that that the Applicant’s claim was fabricated and his evidence was illogical and unreliable, and in particular (i) Given the way the Applicant had been treated, Vu had no intention to kill or grievously harm the Applicant but had only wanted to ask him to pay the debt (ii) The allegation that Vu had taken along 20 people to visit the Applicant was an unbelievable gross exaggeration; and (iii) The Applicant had fabricated the claim (which was also unsupported by documentation) in relation to his allegedly having been arrested and fined for smuggling.

13.  Notwithstanding the above, the TCAB/NRCPO went on to assess COI and found that state protection was available to the Applicant (Paragraphs 25 to 26). As to Torture Risk there was inter alia no real risk of torture upon refoulement and state protection was available (Paragraphs 27 to 33). BOR 3 Risk was not established as there was no real risk he would be subjected to ill-treatment to the minimum level of severity given his past treatment by Vu, the finding as to Vu’s intention, and the availability of state protection (Paragraphs 38 to 42). On the facts BOR 2 Risk was not established (Paragraphs 34 to 37), nor was Persecution Risk due to the lack of a Convention reason (Paragraphs 43 to 44).

14.  In any event the TCAB/NRCPO went on to consider matters relating to internal relocation. It found that on the evidence Vu’s influence was only around Hanoi and Dong Anh[6], that it was open to the Applicant for him to relocate to (for example) Ho Chi Minh City and Da Nang to escape Vu, and it would not be unduly harsh for him to do so (Paragraphs 45 to 48). It therefore dismissed the appeal/petition (Paragraphs 49 to 50).

15.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave. This is especially so given that the assessment, reasoning, and findings regarding the risk of harm and state protection are primarily within the province of the decision-maker. Moreover, and in any event, the findings made in relation to internal relocation would inevitably have led to the conclusion that there was no basis for affording the Applicant non-refoulement protection.

16.  The Affirmation simply says that the Applicant does not agree with the decision and he wants to file a judicial review against the TCAB “Because I can not return back to my home country If I return back, my life will be in danger over there, so I hope to submit this petition to the court to JR.” I do not see how such bare and unsupported allegations are relevant to or assist his application for leave, particularly given the conclusions in and my analysis of the TCAB Decision, and when judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error. I therefore reject and have not had regard to such claims.

17.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

18.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

19.  The Applicant may make an appointment with my clerk for this decision to be interpreted to him in Chinese, if he wishes.

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