TRINH VAN KHOA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1559/2021

[2026] HKCFI 2631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1559 OF 2021

Application for leave to apply for judicial review

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

Following:

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 22 October 2021 and filed on 10 November 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 25 August 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/HCAL001559_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 March 2021 and affirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board/ Non-refoulement Claims Petition Office as the putative respondents and did not name any putative interested party in Form 86, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

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 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”, 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 Pham Van Doan (“Doan”) and Doan’s men due to his inability to repay a huge loan of 3 billion Vietnamese Dong obtained from Doan.

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 10 November 2021.  In his affirmation, the applicant merely stated that he could not return to Vietnam because his life would be in danger and he would face being killed or tortured by his creditor and gangsters.

Discussion

11.  First of all, the applicant’s danger from his creditor had been duly 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.

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 applicant’s appeal/petition, the Board held an oral hearing on 17 August 2021 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

15.  As can be seen from the Board’s Decision, the Board did not find the applicant’s evidence, even to the low standard applicable, to be credible.  The Board found the applicant’s evidence relating to the facts on which his claim was based questionable and unreliable.  The Board was unable to attach any weight to his evidence that he had borrowed money from a moneylender in Vietnam, and had been assaulted and threatened by the moneylender because he failed to repay the loan.

16.  Thus, on the totality of the evidence, the Board was not persuaded that the applicant had borrowed money or had been assaulted and threatened as alleged.  The applicant had therefore failed to establish, even to the low standard required, that he would face any ill-treatment if he was refouled to Vietnam.

17.  Further, the Board found that, in the incidents described by the applicant, the harm by the moneylender did not attain the level of severity of ill-treatment or cruel, inhuman or degrading treatment of punishment.  The moneylender was a non-state actor and there was no evidence of state acquiescence in the alleged ill-treatment of the applicant.  The applicant’s dispute with the moneylender was a private dispute.  The applicant’s fear of the moneylender was not for a Convention reason.

18.  Moreover, the Board found from objective country of origin information (“COI”) which showed that despite shortfalls, there was sufficient state protection in Vietnam.  The police was seriously dealing with crimes involving moneylending and debt collectors.

19.  Further, the Board found that internal relocation was a viable alternative for the applicant.  There was no evidence to show that the moneylender had the resources and power to locate the applicant had he moved to stay and live in provinces or cities other than his own.  The Board considered that it was not unreasonable or unduly harsh for the applicant, who was 30 years old at the time of the Board’s Decision with 6 years of work experience including running his own restaurant, to relocate to a place of his own choice in Vietnam to avoid any perceived threat from the moneylender upon his return to Vietnam.

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

21.  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.

22.  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. 

23.  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

24.  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

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