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HCAL 1762/2020
[2025] HKCFI 2410
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1762 OF 2020
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Le Anh Tuan |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative 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, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 23 June 2020”.
2. The applicant’s application for leave to withdraw the application for leave to apply for judicial review be refused.
3. 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 21 August 2020 and filed on 2 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated “23 June 20” [sic].
2. In relation to the applicant’s claim for non-refoulement protection, the Torture Claims Appeal Board ("the Board") made only one decision on 23 June 2020 (“the Board's Decision”). It is clear that the applicant must be referring to the Board's Decision but did not identify the Board as the decision-maker. The Board’s Decision can be viewed in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001762_2020_files/the_Board's_Decision.pdf
3. The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 November 2018 (“the Director’s Decision”) failed and confirmed the Director’s Decision, which rejected the applicant’s claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”).
Amendments
4. The applicant wrongly named the Board and the Director as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent and only the Director should be the putative interested party. This court therefore 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”.
5. As aforesaid, the applicant should be applying for leave in respect of the Board’s Decision, and hence, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 23 June 2020”.
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 he feared being harmed or killed by his creditor if he were refouled to Vietnam, as he was unable to repay the debt owed to the creditor.
Grounds for judicial review
8. 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).
9. The applicant did not provide any ground for the intended judicial review in Form 86, nor in the supporting affirmation dated 2 September 2020. The applicant merely asserted in the affirmation that he did not agree with the Board’s Decision and the Director’s Decision. He further stated that he wanted to submit the petition for judicial review because he did not want to return to Vietnam, as his life would be in danger there.
Withdrawal of the Leave Application
10. By his latest affirmation dated and filed on 14 May 2025, the applicant made an ex parte application for leave to withdraw the Leave Application, and the reasons for cancelling his application were stated as: (1) it is now safe for him to return to his home country and he would like to return to his country as soon as possible; (2) he confirms that he cancels his case out of his own free will; and (3) he confirms that he fully understands the consequences of his cancelling of Form 86 which include bringing Form 86 to an end even though the merits of which have not been determined and the decision that he has appealed against shall remain in force.
11. There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.
12. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
13. Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to determine the merits of the Leave Application.
Discussion
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. First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as 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). Thus, although the applicant mentioned that he did not agree with the Director’s Decision, this court will only deal with Leave Application in respect of the Board’s Decision.
16. Despite the fact that the applicant did not advance any 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.
17. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 24 April 2019. The purpose was to allow the applicant a chance to present his case and grounds of appeal to the Board in person so that the Board could conduct a proper inquiry and better understand his situation. The Board did consider the applicant’s alleged danger that he would face if refouled to Vietnam.
18. However, the Board found that the applicant was very evasive in answering some questions concerning the core issues of his case and his evidence concerning a number of key aspects of his claims illogical. The Board also found that the applicant did not suffer any harm that could be regarded as reaching the minimum level of severity. Hence, the Board concluded that the risk of being harmed or killed by the creditor was very low.
19. After due consideration of the law and the evidence of the applicant, the Board concluded that the applicant failed to establish any of the applicable grounds under the USM.
20. With regards to the availability of state protection and the viability of internal relocation, the Board referred to the then most updated country of origin information (“COI”) from the applicant’s country from various sources. While noting the problem of corruption, the Board found that the Vietnamese government had taken steps to improve the effectiveness of the police, including the combat against illegal debt collection. Thus, the Board considered that state protection would be ready and available to the applicant on his return to Vietnam.
21. As to internal relocation, the Board found no concrete evidence that the creditor could locate the applicant anywhere in Vietnam, and that as an able-bodied person with livelihood skills and work experience, the applicant could relocate to other parts of Vietnam, such as Hanoi or Ho Chi Minh City without undue hardship.
22. The assessment of evidence, COI and risk of harm are primarily within the realm of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it. In fact, in view of the applicant’s latest affirmation confirming that it is now safe for him to return to his home country, there is absolutely no ground for him to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.
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 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.
24. 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
25. For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 12thday of June 2025
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( Irene LEE )
for Registrar, High Court |
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 12 June 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: 12 June 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14473/18/11/316/V2227
Director of Immigration
Putative interested party’s ref. no.: ImmD QA T/C 4179/18 (Formerly RBCZ 10794/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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