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

HCAL 3821/2019

[2025] HKCFI 1695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3821 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.  By a Form 86 filed on 23 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “TCAB”) dated 12 June 2019 (the “TCAB Decision”), which affirmed the decision by the Director of Immigration (the “DOI”) dated 25 November 2016 refusing the Applicant’s non-refoulement protection claim. He named the TCAB as the proposed respondent as well as an interested party.

2.  I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as an interested party.

3.  The Applicant requested for a hearing of this application and he attended the same.

Background

4.  The Applicant is a national of Vietnam. He seeks non-refouldment protection on the basis that he was threatened by loan sharks in Vietnam to kill him as he was unable to repay a loan to them. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

6.  In his affirmation filed in support of the Form 86, the Applicant only repeated his factual basis for claiming protection and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  At the hearing, he only reiterated that he is still being “hunted” by “gangsters in Vietnam”.

8.  Looking at the TCAB Decision, all the available evidence was placed before the TCAB [21-33] and after careful analysis of the same the TCAB came to the conclusion that the alleged risk was very low [34-42]. Further, the TCAB found in any event that the Applicant could be internally relocated [43-49].

9.  The TCAB then further proceeded to analyse the four applicable grounds under the USM [51-54], applying in each instance the correct legal principles [6-20], and concluded that none of them was made out.

10.  As such, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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