NGUYEN PHUC DINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 175/2021

[2025] HKCFI 5644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 175 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 documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; (2) the Director of Immigration be named as the Putative Interested Party; and (3) the date of the decision in respect of which relief is sought be amended to 27 January 2021.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 18 February 2021 (the “Form”), the Applicant applied for 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 27 January 2021 (the “Board’s Decision”).

2.  In the Form, the Applicant named himself as the proposed respondent. The Applicant did not name any proposed interested parties.  As it is trite that the Board should be the proposed respondent and the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

3.  In the Form, the date of decision in respect of which relief is sought was stated to be 26 November 2020.  The Court is not aware of any decision of the Board dated 26 November 2020.  At the hearing on 27 October 2025, the Court raised the issue with the Applicant and asked the Applicant to confirm that the date stated therein was incorrect, and the Applicant’s intention is to apply for judicial review against the Board’s Decision.  The Applicant confirmed this to be the case.  Accordingly, I make an order to amend the date of the decision on the Form.

4.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 27 October 2025 and the Applicant attended in person.  At the hearing, apart from confirming the date of the Board’s Decision, the Applicant indicated that he had nothing to say in respect of the Leave Application.  

Background

5.  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, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

6.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are 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 errors of law or procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.  The Applicant did not provide any grounds in support of the Leave Application in the Form.  In the supporting Affirmation, the Applicant stated that he disagrees with the Board’s Decision.  He said the Board has failed to consider the reality and practical situation in Vietnam.  He further stated that corruption still exists there, especially in the remote areas.  The Applicant said he can complain to no one in Vietnam, as the police there had ignored his complaint.  He said he cannot go back to Vietnam as his creditor will kill him.

8.  I have considered the Board’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board was entitled to reject the claim based on the evidence and the reasons provided (§§60-92 of the Board’s Decision).  This is particularly so given the weakness in the evidence (§66 of the Board’s Decision). 

9.  In respect of the points made by the Applicant in the supporting Affirmation, it should be noted that the Applicant has never made any report to the police himself (§39 of the Board’s Decision), although he alleged that someone reported the matter to the police on his behalf (§15 of the Board’s Decision).  The Board had duly taken all the evidence into account, and emphasized that the Applicant showed no interest in seeking police protection (§§66(g) & 71 of the Board’s Decision).  Based on the evidence, including the COI materials, the Board was entitled to conclude that state protection is available to the Applicant, and that there is no evidence that the Vietnamese police or the state is unable or unwilling to protect the Applicant (§§55-59, 79-80 of the Board’s Decision).  The Court sees no errors in the Board’s decision in this regard.  As regards the Applicant’s allegation that the Board had failed to consider the reality and practical situation in Vietnam, in so far as the Applicant is referring to the alleged corruption in the police and the alleged inability of the police to assist and protect him, I have already addressed such issue above.  If the Applicant is referring to something else, he has failed to particularise or elaborate the same in the supporting Affirmation or at the hearing on 27 October 2025. 

10.  More importantly, based on the evidence, the Board rejected the Applicant’s claim that he faced serious risk of harm from anyone in Vietnam (§§75, 83 of the Board’s Decision).  The Applicant’s complaint about the inability of the police to protect him should be considered in the light of such finding. 

11.  I find that the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  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.

12.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, including the grounds put forward by the Applicant.

Conclusion

13.  In the premises, I make an order that the Form 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