NGUYEN VAN NAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1133/2020

[2025] HKCFI 3448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1133 of 2020

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 the Applicant being absent at the hearing in open court;

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 9 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 12 May 2020 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named the Board as both the proposed respondent and the proposed interested party.  As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 18 July 2025 (the “Hearing”) and the Applicant was absent.  Notwithstanding his absence, I shall proceed to consider the Leave Application on paper.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In short, the Applicant claims that he would face threats of serious harm or death from his creditors (the “Creditors”) if he were to return to Vietnam.

Discussion

5.  It is trite that determination of the merits of a non-refoulement claim (including assessment of risk of harm, state protection and internal relocation alternatives) is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  Findings of fact on matters such as risk of harm, country of origin information (“COI”) and availability of state protection are exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

6.  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.  In the Form 86, the Applicant did not provide any grounds in support of the Leave Application. In the supporting affirmation, the Applicant merely repeated his claim that he would be subject to threats of serious harm or death from the Creditors if he returns to Vietnam.  However, no specific grounds have been advanced as to how the Board’s Decision is said to be erroneous.

7.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the Unified Screening Mechanism; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness. I see no basis to interfere with the  factual findings of the Board which are fatal to the Applicant’s non-refoulement claim:-

(1)  The Board was entitled to find the Applicant’s factual account to be incredible, having regard to his unsatisfactory evidence. In particular, the Board noted that there were numerous material inconsistencies between the Applicant’s oral evidence and his Non-refoulement Claim Form (§§49-54).

(2)  The risk of serious harm or death was assessed to be low, as the Creditors would have plenty of opportunities to seriously injure the Applicant but did not do so (§§63-67).

(3)  Having considered relevant COI, the Board was satisfied that there was sufficient state protection.  There was no reason for the Applicant not to seek assistance from the authorities in Vietnam for protection (§§24-27, 74-83).

(4)  The Board was also fully entitled to find that there were reasonable internal relocation alternatives available to the Applicant, having regard to his personal circumstances (§§22-23).  Given that Vietnam is  a large country, the Applicant’s claim that the Creditors would be able to locate the Applicant anywhere Vietnam is a bare assertion not supported by credible evidence (§§64, 84-93).

8.  In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

Conclusion

9.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be 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