DO VAN CUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1732/2023

[2026] HKCFI 3502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1732 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

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 28 September 2023, 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 31 August 2023 (“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/2023/HCAL001732_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 30 August 2021, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Board and “Director of Immigration Department” as the putative respondents, and did not name any putative interested party.

4.  In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

5.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

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 if refouled to Vietnam, he would be harmed or killed by a moneylender named DO Van Hong due to his inability to repay an outstanding loan.

Disposal on paper

8.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.  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).

10.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 28 September 2023. He only stated in the affirmation that if 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

11.  First of all, the applicant’s alleged risk from his creditor had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

12.  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).

13.  Thus, despite the fact that the applicant did not advance any valid 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.

14.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 25 May 2022. The applicant was present and was thus given the chance to present his case to the Board in person.

15.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.

16.  In gist, the Board found that the applicant’s risk arose only from a private monetary dispute between the applicant and the moneylender. The applicant had not been physically harmed by the moneylender or his men, who were allegedly triad members. The Board found that the moneylender and his men had no real intention to harm or kill the applicant, as they could have done so, but they did not. The Board considered that the ill-treatment, if any, that the applicant suffered in the past did not attain a minimum level of severity. There was no evidence of state acquiescence in the applicant’s case and his fear of the moneylender was not for a Convention reason.

17.  Moreover, the Board found no evidence to show that the government of Vietnam was unwilling or unable to provide effective protection. Although country of origin information (“COI”) showed that corruption remained to be a problem in Vietnam, the Board also found from reliable COI that the Vietnamese government had taken steps to curb corruption, monitor the performance of the police and to crack down illegal loan shark activities. There was no clear or convincing evidence to show that the Vietnamese government refused, or was unable, to offer effective protection to the applicant.

18.  More importantly, the Board had given its full reasons in paragraphs 56 to 61 of the Board’s Decision for a finding that the applicant could reasonably live without fear of the alleged harms and undue hardship, if he relocated to Ho Chi Minh City or Da Nang.

19.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

20.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

21.  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.

22.  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

23.  For reasons aforesaid, the Leave Application is dismissed.

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