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HCAL 503/2022
[2025] HKCFI 4913
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 503 OF 2022
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BETWEEN
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Bui Van Du |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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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 to withdraw the application for leave to apply for judicial review be refused.
3. 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 20 June 2022, 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 2 June 2022 (“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/2022/HCAL000503_2022_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board found the applicant’s appeal/petition not established and confirmed the decision of the Director of Immigration (“the Director”) dated 30 August 2019.
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 tortured, beaten, detained or even killed by a moneylender due to his inability to repay 300 million Vietnamese Dong (“VND”), which was the outstanding balance of an original loan of 450 million VND. The applicant also feared that the Vietnamese government might harm him because two government officials had verbally threatened to harm him when he refused to sell his land to the government.
Withdrawal of the Leave Application
8. On 20 May 2025, the applicant filed an ex parte application by way of an affirmation dated the same date, in which he applied to withdraw his application for judicial review and to cancel his case because it was safe for him to return to Vietnam. He also confirmed that the application was made out of his own free will and he understood the consequences of cancelling Form 86, namely that he was bringing the Form 86 to an end even though the merits of which had not been determined, and the decision that he had appealed against would remain in force. The applicant also wrote a letter to the Registrar of this court dated 20 May 2025 making the same application for withdrawal and cancellation of the Leave Application.
9. There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application even though he had previously requested one.
10. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
11. Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.
Grounds for judicial review
12. 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).
13. The applicant did not state any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 20 June 2022. The applicant merely stated in the affirmation that he did not agree with the Board’s Decision and reiterated the matter that gave rise to his non-refoulement claim.
Discussion
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 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.
16. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 30 June 2020 and the applicant was present. Thus, the applicant did have a chance to present his case to the Board in person.
17. The Board separately considered the threats that the applicant claimed, namely, the threat from the two government officials relating to the selling of his land and the threat from the moneylender.
18. The Board considered that there was no evidence to support that the two government officials threatened him in their official capacity or that their act of threatening him was with the consent of the Vietnamese government. The applicant could have or indeed could liaise with the Vietnamese government about the selling of his land at a reasonable price upon his return to Vietnam.
19. With regards to the threat from the moneylender arising from his outstanding debt, the Board found that the injury he sustained from the only assault he received did not reach a minimum level of severity. The Board considered that if the moneylender had the real intention to severely harm or kill the applicant, he could have done so in the past. Hence, the Board concluded that the purpose of such verbal threats was to give pressure on the applicant so that he would speed up the repayment, which was common tactic used by moneylenders against debtors. The Board found that the monetary dispute between the applicant and the moneylender was private in nature, which was not a ground for non-refoulement protection under the USM.
20. In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information (“COI’) for the applicant’s country from different sources. While noting the problem of corruption and the widespread of illegal loan shark activities in Vietnam, there was evidence from reliable COI that showed the authorities had enhanced their action in cracking down loan sharks and further to proactively prevent and strictly handle the corruption problem among government officials and the police. The Board considered that the applicant should be able to obtain assistance from the police and authorities if he needed it. The applicant’s assertion that the police would not help him was just the applicant’s speculation, as he had never sought assistance from the police when he was in Vietnam.
21. The Board also considered the viability of internal relocation for the applicant. The Board found the applicant’s feared threats from the moneylender was a localised one, which could be reduced or negated by internal relocation. The applicant had 14 years of education, 6 years of training in vehicle maintenance and 3 years of work experience. Moreover, the fact that the applicant was able to flee from Vietnam to Hong Kong twice via mainland China on his own indicated that he was fit physically and mentally. It would not be unduly harsh for the applicant to relocate to other parts of Vietnam.
22. The finding of facts was solely within the ambit of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
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. Moreover, as the applicant had confirmed that it would be safe for him to return to Vietnam, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.
25. It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).
26. Thus, even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for him to return to his own country. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).
27. It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.
28. 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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.
Conclusion
29. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 15th day of October 2025
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(Irene LEE)
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:
15 October 2025
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: 15 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16268/19/9/24/V2343
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 604/19
(Formerly as RBCZ 10434/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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