NGO VAN THUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 649/2020

[2025] HKCFI 3776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 649 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 dated 17 March 2020” in place of the words “Dated: 10 Oct 2019”;

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 said to have been made on 10 October 2019.

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

3.  There is no decision relating to the Applicant dated 10 October 2019, and the Affirmation does not exhibit any decision. However:

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, a loan shark, one 阿勇;

b.  His claim was assessed on the grounds of Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 13 December 2019 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/Non-Refoulement Claims Petition Office (“NRCPO”), which held a hearing in relation to the Applicant’s non-refoulement claims on 3 March 2020; and

d.  The TCAB/NRCPO then handed down a decision dated 17 March 2020 (“TCAB Decision”)[5] which rejected the Applicant’s petition/appeal and confirmed the Director’s Decision.

4.  In the circumstances, and as the Form 86 and Affirmation refer to a decision of the TCAB, I take it that the Applicant only sought and seeks leave in relation to the TCAB Decision, and not also of the Director’s Decision.  However, if and insofar as he seeks leave to apply for judicial review of the Director’s Decision, 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 have briefly summarised portions thereof above, and will not repeat the contents of the TCAB 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 (Paragraphs 1 to 4), the conduct of the hearing (Paragraph 5), followed by the issues that it would decide (Paragraph 6).

13.  Turning to the first of these (the likelihood that the feared treatment would materialise i.e. risk of the alleged harm) the TCAB/NRCPO set out its analysis and conclusions as to the evidence. In particular, it did not accept the Applicant’s evidence on the core facts of his case being that he had obtained a loan for business, and had consequently been pressed for payment (Paragraphs 7 to 21).  It also concluded that even if it had accepted the Applicant’s evidence, such did not show that the creditor had the intention to harm or kill the Applicant (Paragraph 21). Further, state protection was available (Paragraphs 22 to 25).

14.  The TCAB/NRCPO then turned to the four bases of risk, apparently on the alternative basis that it accepted the Applicant’s evidence on the core facts of his claim. It held that Torture Risk had not been established given that the alleged issues with the creditor were private, there was no evidence of active or passive acquiescence, and that in any event there was no foreseeable risk that he would be subjected to torture in the future (Paragraphs 26 to 30). It also found that BOR 3 Risk was not established having regard to the lack of severity of past treatment, the findings on risk of harm, the availability of internal protection, and that BOR 2 Risk was not established given the nature of the Applicant’s allegations. Both grounds were hence dismissed (Paragraphs 31 to 36). As for Persecution Risk it held that no Convention reason was engaged, and there was no well-founded given the TCAB/NRCPO’s assessment of risk of harm, and as state protection was available (Paragraphs 37 to 38).

15.  The decision-maker also found that in the circumstances the Applicant could relocate internally to Hanoi or Ho Chi Minh City and that such would not be harsh (Paragraphs 40 to 41). Finally, and in view of the reasons above, she dismissed the appeal/petition and confirmed the Director’s Decision (Paragraph 42).

16.  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. In particular:

a.  I discern no public law basis to criticise, let alone one sufficient so as to vitiate, the assessment, reasoning, and findings regarding the Applicant’s credibility and evidence (which are matters primarily within the province of the decision-making body) and consequently the rejection of the core facts of the Applicant’s case. Consequently, there is no basis for disturbing the TCAB/NRCPO’s conclusions as to risk of harm, and the rejection of Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk (all of which are matters primarily within the province of the decision-making body);

b.  Nor is the Applicant’s case improved even if it is assumed that the TCAB/NRCPO should have accepted his evidence on the core facts of his case, since the decision-maker used such basis in assessing the risk of harm, and whether the four types of risk were made out[6]; and

c.  Finally, and in any event, there is also the finding of internal relocation which is also one primarily within the province of the decision-making body and which there is no public law basis to vitiate.

17.  In the Affirmation the Applicant alleges that he does not agree with the decision and he wants to file a judicial review “Because I can not go back my home country, My life is in danger over there.” I do not see that such allegations (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.

18.  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

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

20.  The Applicant may make an appointment with my clerk for this decision to be interpreted to 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