|
HCAL 2077/2020
[2026] HKCFI 1632
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2077 OF 2020
|
BETWEEN
|
| |
Phan Dang Hung |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
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”.
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 16 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 6 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/HCAL002077_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection 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 31 January 2020, which rejected the applicant’s non-refoulement claim.
Amendment
3. The applicant named the Board/ Non-refoulement Claims Petition Office as the putative respondent in Form 86, when only the Board should be so named.
4. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
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 feared being harmed or killed by his creditor named TRONG due to his inability to repay a debt of 500 million Vietnamese Dong.
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. Thus, 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 16 October 2020.
Discussion
11. 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).
12. 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.
13. In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 5 June 2020. The applicant was thus given the chance to present his case to the Board in person.
14. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found that although the applicant had been attacked by the creditor’s men on a few occasions, the injuries he sustained were not serious so as to reach the threshold of torture as defined in section 37U of the Immigration Ordinance or a minimum level of severity. The Board found that the acts and threats of the creditor and his men were merely means to pressurize the applicant to repay the loan.
15. The Board found the risks that the applicant claimed to face only arose from his inability to repay a loan, which was a personal matter. There was no evidence of state acquiescence. The ill-treatment inflicted upon him was not for a Convention reason.
16. The Board found the applicant’s claim that the police in Vietnam would not help him to be bare assertions without supporting evidence. Contrary to the applicant’s claim in this regard, the Board found from extensive country of origin information (“COI”) that despite the existence of corruption and criticisms as to the effectiveness of the law enforcement, the Vietnamese government was taking practical steps to combat corruption, improve police efficiency and to crack down illegal loan sharks. The Board thus found that state protection would be available to the applicant upon his return should he need it.
17. As to the viability of internal relocation, the Board found the applicant’s claim that the creditor had a large network in Northern Vietnam and could easily locate him to be his own speculation only and not supported by evidence. There was no evidence that the creditor was sufficiently resourceful to locate him countrywide. The Board found that it would be viable and not unduly harsh for the applicant, being an able-bodied adult with basic education and ample work experience, to relocate to other areas in Vietnam, such as Ho Chi Minh City or Danang where there were many employment opportunities, to avoid his creditor.
18. Thus, the Board concluded that the applicant had failed to establish that he would face a real risk of being subjected to ill-treatment, torture, arbitrary deprivation of life or persecution upon refoulement.
19. The finding of facts, including 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 conclusion.
20. 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.
21. 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
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 20th day of March 2026
| |
( Teresa NG )
for Registrar, High Court
|
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:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 20 March 2026
Applicant’s ref. no:
Nil |
|
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: 20 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16738/20/2/16/V2438
Director of Immigration
Putative interested Party’s ref. no.:
QA T/C 1152/19 (formerly RBCZ 260/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|