NGUYEN VAN CHINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 811/2020

[2025] HKCFI 3740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 811 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 theApplicant being absent 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 inserting “Decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office dated” before the words “14 April 2020”;

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Vietnam.  He sought to leave to apply for judicial review by a Form 86 filed on 4 May 2020 (“Form 86”), and a supporting affirmation also filed on 4 May 2020 (“the Affirmation”).  In the former document, he identified the decision as being one dated 14 April 2020.  However, no document was exhibited to the Affirmation.

2.  The Applicant sought an oral hearing of his application, but did not appear at such.  I have hence dealt with his application on the papers.

3.  In the circumstances I take it that the Applicant seeks leave to apply for judicial review of a decision, regarding his non-refoulement claim, of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 14 April 2020 (“TCAB Decision”)[1].

4.  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

5.  The Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief are set out in the TCAB Decision.  I will not repeat them but, in essence:

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 NNH, his creditor, for failing to pay his debts;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 4 December 2019 (“Director’s Decision”);

c.  The Applicant petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 13 March 2020; and

d.  The TCAB/NRCPO then handed down the TCAB Decision which rejected the Applicant’s petition/appeal.

Legal Principles

6.  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).

7.  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).

8.  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

9.  No grounds for judicial review are set out in the Form 86 or the Affirmation.  The Applicant has only said in the latter that he does not agree with the TCAB Decision and he wants to file a judicial review against them “because I can not go back to my home country, my life is in danger over there”.  I will deal with such below.

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.  Nevertheless, 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.  Having done so, I do not 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 that is sufficient to vitiate the conclusions in the TCAB Decision, or that would in any event justify the grant of leave.  In particular:

a.  The assessment, reasoning, and findings regarding the risk of harm and state protection were and are matters primarily within the province of the decision-making body, which set out and considered the relevant material and submissions before it in reaching its decision. I see no reasonably arguable public law basis to vitiate such (see Paragraphs 2 to 3.3, 15 to 17, the first sentence of 18, and 19, 23, and 29);

b.  I also see no reasonably arguable public law basis to vitiate the TCAB/NRCPO’s finding that there was no Convention reason in relation to Persecution Risk; and

c.  Given the aforesaid, there is no reasonably arguable public law basis to vitiate the conclusions that the Applicant had failed to establish any of the four relevant types of risk, and hence his claim for non-refoulement relief.

13.  I do not see that the bare and unsubstantiated allegations made in the Affirmation are relevant to the issues before me or assist the application for leave, given the aforesaid findings in and analysis of the TCAB Decision, and as 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 absent any legal error (Lakhwinder Singh, supra). I therefore reject and have not had regard to such claims.

14.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

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

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