LUONG HOANG SON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 701/2020

[2025] HKCFI 3738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 701 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 from 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 and only the Director of Immigration as the Putative Interested Party;

2.  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 20 April 2020 (“Form 86”), and a supporting affirmation also filed on 20 April 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision, which was said to be of the Torture Claims Appeal Board (“TCAB”) (which decision is also one of the Non‑Refoulement Claims Petition Office (“NRCPO”)) dated 26 March 2020 (“TCAB Decision”)[1].

2.  The Applicant sought an oral hearing of his application. He appeared at such and confirmed that he was referring in his papers to the TCAB Decision. He said he had nothing else to add.

3.  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. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

4.  The Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief are set out in the TCAB Decision. I will not repeat them but, in essence:

a.  The Applicant claimed non-refoulement protection on the basis that if he were to be sent back to Vietnam he would be harmed or killed by his creditor for failing to pay his debts;

b.  The 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 26 November 2019 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 10 March 2020; and

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

Legal Principles

5.  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).

6.  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).

7.  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

8.  No grounds for judicial review are set out in the Form 86 or the Affirmation. The Applicant has only said in the latter that he does not agree with the TCAB Decision and he wants to file a judicial review against the TCAB “because I can not go back to my home country, my life is in danger over there”. I will deal with such below.

9.  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.

10.  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.

11.  The TCAB/NRCPO began by setting out the Applicant’s immigration and procedural history (Paragraph 1), followed by his case for non-refoulement relief including as to the incidents relied on (Paragraphs 2 to 20), and the order in which the decision-maker would assess the claim (Paragraph 21).

12.  The decision-maker then assessed the Applicant’s information and testimony as provided, concluding that it was contradictory in crucial aspects and inherently unreliable, and that as the decision-maker could not rely on unreliable information and evidence in arriving at a decision in his favour, his appeal/petition was therefore dismissed (Paragraphs 22 to 33). It was then held that even if such had been accepted, the appeal would still be dismissed as the assessed risk of harm meant that Torture Risk, BOR 2 Risk, BOR 3 Risk, and Persecution Risk had not been established, in relation to Persecution Risk there was no Convention reason, and as there was no information to suggest that the creditor had sufficient resources and capabilities to search for him countrywide such that internal relocation (including in particular to Danang or Ho Chi Minh City) was available to the Applicant, and would be neither unduly harsh nor unreasonable. The TCAB/NRCPO confirmed the Director’s Decision (Paragraphs 34 to 63).

13.  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 sufficient to vitiate the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s credibility and evidence, the risk of harm, Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk, and internal relocation, which are all matters primarily within the province of the decision-making body.

14.  I do not see that the allegations in the Affirmation (which amount at best to a submission) are relevant to the issues before me or assist his application for leave, given my analysis of and the findings in 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.

15.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

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

17.  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