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HCAL 2172/2020
[2025] HKCFI 5390
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2172 OF 2020
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BETWEEN
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Mac Van Thu |
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, 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 and filed on 29 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 15 October 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/HCAL002172_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 January 2020.
Amendments
3. In Form 86, the applicant named both the Board and “Director of Immigration Department” as the putative respondents, when only the Board should be the putative respondent.
4. Further, the applicant named himself as the putative interested party, when the Director should be so named.
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 to amend 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 he feared that if refouled to Vietnam, he would be harmed or killed by his creditor from whom he borrowed a sum of 50,000 USD to operate his own business of cow farming as he was unable to repay the debt.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 11 September 2025.
9. 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.
10. 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
11. 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).
12. The applicant did not advance any ground for the intended judicial review in Form 86.
13. In his supporting affirmation dated 29 October 2020, the applicant merely stated that were he be refouled to Vietnam, he would face a genuine and substantial risk of being subjected to torture or even killed by his creditor and his men since he was insolvent.
Discussion
14. First of all, the factual basis of the applicant’s claim, namely that he would be at risk of being harmed or killed by his creditor, had already been considered but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
15. 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).
16. Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
17. This court noted that the Board assessed the applicant’s appeal/petition without an oral hearing and adopted the approach of a re-hearing by examining all the documentary evidence afresh. The Board’s reason for not having an oral hearing was that it considered that the necessary standard of fairness could still be maintained.
18. From the Board’s Decision, it can be seen that the Board had considered the applicant’s claims without challenging the factual basis of his claim. The Board accepted that: (1) the applicant’s creditor had come to his home twice to urge him for repayment but did not attack him; (2) the creditor had during the second visit threatened that he would break the applicant’s arms and legs if the applicant did not repay the loan on time; (3) the creditor agreed that the applicant could repay the principal and the interest by March 2019, when he first came to his home in December 2018 to ask for repayment; (4) the applicant was followed once by three unknown men whom he suspected were sent by his creditor, but the men did not harm him; and (5) the creditor had twice visited his home to ask his wife for his whereabouts after his departure from Vietnam, but when his wife told the creditor that she did not know, the creditor left without harming his family members.
19. The Board also considered the applicant’s doubt about the willingness and capabilities of the Vietnamese police to protect him and the reasons he gave for not being able to relocate to other places in Vietnam.
20. There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the appeal/petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).
21. Thus, it was not a must for the applicant to have an oral hearing before the Board. The Board had considered all the matters raised by the applicant in relation to his non-refoulement claim without doubting the credibility of the applicant and his claims.
22. This court agrees with the Board that an oral hearing was not necessary. There was no procedural unfairness to the applicant when the factual basis of the applicant’s claims was all accepted.
23. As can be seen from the Board’s Decision, the Board gave very detailed analysis and reasoning in rejecting the applicant’s claims. The Board found that the applicant’s dispute with his creditor was only a private loan dispute between them. The applicant had never been harmed or attacked, and the threat he feared did not fall within the meaning of torture under section 37U of the Immigration Ordinance. There was no evidence of any state acquiescence in the dispute. The acts that were inflicted upon the applicant were not for a Convention reason. The Board also found that the treatment the applicant suffered did not attain a minimum level of severity.
24. While noting the problem of corruption and the widespread of illegal loan shark activities in Vietnam, the Board found evidence from reliable country of origin information (“COI”) showing that the authorities had taken measures to tackle corruption, enhanced their action in cracking down loan sharks and further to proactively prevent and strictly handle loan shark related crimes. The Board considered that the applicant should be able to obtain assistance from the police and authorities if he needed it. The applicant’s assertion that the police would not help him was just the applicant’s speculation, as the applicant had never sought assistance from the police when he was in Vietnam.
25. The Board also considered the viability of internal relocation for the applicant. The Board found that the applicant’s feared threats from his creditor was a localised one, which could be reduced or negated by internal relocation. There was no evidence that the creditor could locate him anywhere in Vietnam. The applicant has 10 years of education and ample working experience, and it would not be unduly harsh for the applicant to relocate to other parts of Vietnam.
26. Thus, the applicant’s risks upon refoulement had all been duly considered but rejected by the Board.
27. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
28. 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.
29. 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
30. For reasons aforesaid, the Leave Application is dismissed.
Dated the 11th day of November 2025
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( Irene LEE )
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:
11 November 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:
11 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16718/20/1/80/V2434
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1091/19
(Formerly RBCZ 10823/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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