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BETWEEN
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Nguyen Van Hoa
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Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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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 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 28 September 2021, 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 9 September 2021 (“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/2021/HCAL001358_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 9 February 2021, which rejected the applicant’s non-refoulement claim.
Amendment
3. In Form 86, the applicant named the Board as both the putative respondent and the putative interested party.
4. In fact, the Board should only 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 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 if refouled to Vietnam, he would be harmed or killed by NGUYEN Xuan Truong (“the Creditor”) and the Creditor’s fellows as the applicant owed the Creditor a loan that he had no money to repay.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 2 April 2026.
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 his intended judicial review in Form 86. In his supporting affirmation dated 28 September 2021, the applicant merely reiterated the basis of his non-refoulement claim, namely that he owed a debt in Vietnam and his creditor had vandalized his home and beaten him for his failure of repayment.
Discussion
13. First of all, the applicant’s danger upon refoulement had been assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
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. Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
16. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 4 May 2021. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.
17. As can be seen from the Board’s Decision, the Board found that the applicant had only made bare assertions and provided no objective proof of his assertions including the threats from the Creditor or the incident in 2019 where the Creditor and his men went to find the applicant at his home.
18. The material findings of fact were laid out in details in paragraphs 53 to 64 of the Board’s Decision. In gist, the Board found that the applicant had not suffered any physical harm and even verbal threats from the Creditor. The harm, actual or perceived from the Creditor, if any, had not attained a minimum level of severity. There was no indication that the Creditor and his men were public officials or acting in any official capacity, nor was there any evidence to show that the state of Vietnam was unwilling or unable to afford protection to the applicant.
19. The Board found from country of origin information (“COI”) that despite there was corruption in the government authorities, steps were being taken by the Vietnamese government to improve the situation. The Board found that reasonable state protection would be available to the applicant.
20. Moreover, the Board found that the threat from the Creditor was localized around the applicant’s locality in Hai Phong only. The applicant had never met the Creditor since he left his hometown in August 2019. The Board found no evidence to suggest that the applicant would not be able to re-establish himself in his home state or elsewhere in Vietnam upon refoulement.
21. In view of its findings, the Board considered that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM.
22. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
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 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.
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 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
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 22nd day of April 2026
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( Teresa NG )
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 his 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: 22 April 2026
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: 22 April 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17679/21/2/95/V2764
Director of Immigration
Putative interested party’s ref. no.: QA T/C 840/20 (formerly RBCZ 10731/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1