MAN VIET LINH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2020/2020

[2026] HKCFI 2633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2020 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 16 September 2020 and filed on 7 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 10 September 2020 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002020_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 September 2017 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86.

4.  In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or even killed by two creditors named Tran Gia Vu and Nguyen Van Phuong and their men due to his inability to repay the loans obtained from them in full.

Disposal on paper

8.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 7 October 2020.  In his affirmation, he merely stated that he did not agree with the decisions of both the Board and the Immigration Department since the decisions were grossly unfair and unjust, and he could not return to Vietnam as his life would be in danger.

Discussion

11.  First of all, the applicant’s alleged danger from his creditors had been duly assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

12.  The applicant’s disagreement with the Director’s Decision is irrelevant, as only the Board’s Decision is the subject matter of the Leave Application. In any event, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). 

13.  The applicant’s general assertion that the Board’s Decision was unfair and unjust cannot help him either.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, the applicant’s general allegation cannot be a ground for his intended judicial review at all.

14.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

15.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

16.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 9 September 2019.  However, the applicant was absent at the hearing. The applicant also failed to respond to the Board’s letter of even date informing him that he could provide the reasons for his absence together with supporting evidence to explain his absence within 7 days from the date of the said letter.  Thus, the Board proceeded to determine the applicant’s appeal/petition based on all the available evidence before the Board.

17.  As can be seen from the Board’s Decision, the Board did not challenge the credibility of the applicant’s claim and assessed his appeal/petition on the factual basis as presented by the applicant. 

18.  The Board found that the disputes between the applicant and his two creditors were only personal financial disputes arising from the applicant’s inability to repay his loans.  There was no evidence of state acquiescence in his disputes with his creditors.  The applicant’s fear from his creditors was not for any Convention reasons.  Even on the applicant’s own account, he was only attacked twice during the four attempts by the creditors to chase him for repayment.  The injury sustained by the applicant did not reach the level of torture as defined in section 37U(1) of the Immigration Ordinance, nor attain a minimum level of severity required for international protection.  The Board found that the creditors had no real intention to seriously harm or otherwise kill the applicant, as the creditors had ample opportunity to do so, but they did not.

19.  The Board also found that although there were country of origin information (“COI”) which supported the applicant’s assertion that the police were corrupt, there were also reliable COI showing that the Vietnamese government was undergoing reforms to improve police performance, combat corruption and crack down loan shark activities.  The Board considered that reasonable state protection would be able to the applicant should he need it.

20.  Moreover, the Board found that there should be viable options for the applicant to settle at an alternative place in Vietnam.  There was no evidence to show that the creditors had the resources and power to locate the applicant had he moved to stay and live in provinces or cities other than his own.  The Board considered that it was not unreasonable or unduly harsh for the applicant, being able-bodied with years of work experience, to relocate to another place in Vietnam to avoid any perceived threat from his creditors upon his return to Vietnam.

21.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

22.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

23.  Having rigorously examined the Board’s Decision 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 applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

24.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.  For reasons aforesaid, the Leave Application is 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