NGUYEN MINH CHIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 660/2020

[2025] HKCFI 3059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 660 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, and by inserting “Decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” before the words “20 MAR 2020”;

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 dated and filed on 15 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 15 April 2020 (“the Affirmation”) he sought leave to apply for judicial review of a decision made on 20 March 2020.

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

3.  The Affirmation does not exhibit any decision. However, there is a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) relating to the Applicant dated 20 March 2020 (“TCAB Decision”)[1]. Moreover, the Form 86 names the TCAB as a respondent, and the Affirmation says that the Applicant does not agree with the decision of the TCAB, and that he seeks to file a judicial review against the TCAB.

4.  I therefore take it that the Applicant was intending to refer to the TCAB Decision. I did not understand the Applicant to be seeking leave to commence a judicial review of a previous decision of the Director of Immigration dated 8 November 2019 (“Director’s Decision”) despite his having named the “Immigration Department” as a putative respondent and a 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. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

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 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, one Dai,  because of his inability to pay his debts;

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 in the 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 4 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

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 began by setting out the Applicant’s immigration and procedural history, the Applicant’s case including as to the incidents relied on, and the issues that it would decide (Paragraph 1 to 14).

13.  The decision-maker then analysed the Applicant’s information and evidence as provided. He concluded, with reference to the underlying evidence before him, that the information and evidence provided by the Applicant was unreliable in several crucial areas, including as to the alleged incidents which the Applicant relied on. Hence there was no basis for a decision to be reached in favour of the Applicant and that the appeal/petition would be dismissed (Paragraphs 15 to 36).

14.  Nevertheless, the TCAB/NRCPO went on to hold that even if it had accepted the Applicant’s account in his claim form, the appeal/petition would be dismissed for other reasons (Paragraphs 37). Firstly, it considered that the evidence did not substantiate the Applicant’s claim that he would be killed or seriously harmed (Paragraphs 38 to 41). Secondly, even if there were such a risk then on the evidence it could reduced or eliminated by reason of internal relocation outside of his hometown to Mong Cai, Hanoi, or Ho Chi Minh City, which relocation would not be difficult (Paragraphs 42 to 53). Thirdly, it found that there was no Torture Risk having regard to the capacity in which Dai would be acting and issues of acquiescence (Paragraphs 54 to 58), BOR 3 Risk and BOR 2 Risk given in particular the findings at paragraphs 38 to 41 above (Paragraphs 59 to 66), or Persecution Risk having regard to the lack of a Convention reason and the findings at paragraphs 38 to 41 above (Paragraphs 69). Accordingly it held that the appeal/petition was not substantiated, dismissed such, and affirmed the correctness of the Director’s Decision (Paragraph 70).

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.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence and credibility, 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.

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 go back my home country, my life is in danger over there.” I do not see that such is relevant to the issues before me or assists his application for leave. After all, 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. Given the extremely vague nature of the claim that his “life is in danger” in Vietnam, I do not accept that the Applicant has satisfied the first condition in Ladd v Marshall [1954] 1 WLR 1489. I also do not accept that the Applicant has satisfied the second or third conditions given, again, the extremely vague nature of the allegation as set against the findings made by the TCAB/NRCPO (in particular those relating to his credibility and evidence, the risk of harm, state protection, and internal relocation). I therefore reject the allegation as being inadmissible and irrelevant.

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