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HCAL 337/2020
[2025] HKCFI 1670
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 337 OF 2020
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BETWEEN
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Nguyen Van Doan |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, “Director of Immigration” be added as the putative interested party.
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 9 March 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 2 March 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/HCAL000337_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) failed. Hence, the Board rejected the applicant’s appeal and confirmed the decision of the Director of Immigration (“the Director”) dated 18 August 2017.
Amendment
3. The applicant did not name any putative interested party in Form 86. This court therefore makes an order on its own motion to add “Director of Immigration” as the putative interested party.
The applicant’s case
4. 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.
5. In sum, the applicant claimed for non-refoulement protection because he was indebted to a creditor in Vietnam and feared that the creditor would harm or kill him if he were to return to Vietnam.
Oral hearing
6. The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 15 April 2025.
7. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the Leave Application on its merits.
8. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
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. However, the applicant failed to identify any ground for judicial review in Form 86 nor in his supporting affirmation dated 9 March 2020. He merely stated in his affirmation that he did not agree with the Board’s Decision.
Discussion
11. 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).
12. In assessing the applicant’s appeal, the Board held an oral hearing on 17 April 2019. The Board found the applicant’s evidence not credible. The Board did not accept that the applicant had borrowed money from the creditor and that the applicant was ever threatened or assaulted. Thus, the Board found that there were no substantial grounds for believing that he would be subjected to torture or ill-treatment if he were to be sent back to Vietnam. Moreover, state protection was available and internal relocation was viable for the applicant.
13. Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM. The Board is entitled to come to its own conclusion. The mere fact that the applicant did not agree with the Board cannot give rise to any valid ground for judicial review. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review, since the finding of facts is within the sole ambit of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.
14. 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 error 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.
15. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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
16. For reasons aforesaid, the Leave Application is dismissed.
Dated the 30th day of April 2025
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( Thomas Chan )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on 30/4/2025
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 30/4/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 8500/17/9/172/V1673
Director of Immigration
Putative interested party’s ref. no.: QA T/C 1682/17 (Formerly RBCZ 3001736/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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