Do Van Ngoc v. Torture Claims Appeal Board

HCAL 351/2020

[2025] HKCFI 2853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 351 OF 2020

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;

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” and 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 9 March 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 24 January 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/HCAL000351_2020_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s non-refoulement claim was not made out on any of the applicable grounds under the Unified Screening Mechanism (‘the USM”), dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 20 November 2019.

Amendments

3.In Form 86, the applicant wrongly named “TOURTURE CLAIM APPEAL BOARD” and “IMMIGRATION DEPART MENT” as both the putative respondents and the putative interested parties. In fact, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party.

4.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because, if refouled to Vietnam, he feared that he would be harmed or even killed by his creditor as he could not repay a loan of 800 million Vietnamese Dong borrowed by him to start a restaurant business.

Grounds for judicial review

7.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).

8.However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation filed on 9 March 2020. He only stated in the affirmation that he did not agree with the decision of the Board. He wanted to file judicial review because he could not go back to his home country and his life would be in danger over there.

Discussion

9.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).

10.Thus, despite that the applicant did not advance any ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

11.In assessing the applicant’s claim, the Board held an oral hearing on 20 January 2020. The applicant was present. The Board questioned the applicant in detail to clarify the issues and incidents that gave rise to his non-refoulement claim.

12.Having considered the applicant’s evidence carefully, the Board found that the applicant’s claims regarding the loan, his business and how he was demanded for repayment were vague, lacking details and contradictory. The Board also found that the applicant was not hurt on the first three occasions when the creditor asked him for repayment, and the injury he sustained from the only attack was minor and did not attain a minimum level of severity. The threats from the creditor, even if real, were more likely to be means to make the applicant repay the loan. There was no evidence to suggest that the creditor had a real intention to seriously harm or even kill the applicant. Hence, the Board concluded that there was not a real or substantial risk that he would be subjected to ill-treatment, arbitrary deprivation of life or persecution should he be refouled to Vietnam.

13.In addition, though noted from country of origin information that the Vietnamese government and authorities could not be said to be free from corruption and inefficiency, the Board found that the Vietnamese government was able to combat crime, fight corruption and offer reasonable protection to its citizens. There were also measures in place to crack down illegal loan shark activities. State protection was therefore available to the applicant should he need it upon his return.

14.Even though the Board refused to accept the applicant’s claims, the Board nevertheless assessed the viability of internal relocation for the applicant. There was no evidence that his creditor was associated with any officials of the Vietnamese government or had the power or resources to locate him in such a vast country. The perceived risk of the applicant was localized in nature. The Board found that it would not be unreasonable or unduly harsh for the applicant, being an able-bodied young adult with 13 years of education, to relocate to other cities away from his home area, such as Hanoi or Danang, to further reduce or negate any perceived harm.

15.Thus, the Board did consider the applicant’s alleged danger in his home country but rejected the applicant’s claim.

16.The finding of facts relating to a non-refoulement claim is solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong in the way the Board reached its decision.

17.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.

18.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 had to be a reasonably arguable claim which enjoyed 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

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

Dated the 8^th day of July 2025

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