Dinh Xuan Manh v. Torture Claims Appeal Board

HCAL 970/2020

[2025] HKCFI 3120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 970 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, “Torture Claims Appeal Board” be added as the putative respondent, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 9 March 2020”.

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 9 March 2020 and filed on 22 May 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") and Immigration Department dated 9 March 2020.

2.The Board made a decision regarding the applicant’s appeal/petition on 9 March 2020 (“the Board's Decision”). It is clear that the applicant was referring to the Board’s Decision in Form 86 instead of any decision of the Immigration Department. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000970_2020_files/the_Board's_Decision.pdf

3.The Board found that the applicant had not established a well-founded fear 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 30 August 2019, which rejected the applicant’s non-refoulement claim.

Amendments

4.The applicant failed to name properly any putative respondent and putative interested party in Form 86, when the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

5.Thus, on this court’s own motion, “Torture Claims Appeal Board” is added as the putative respondent and “Director of Immigration” is added as the putative interested party.

6.As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought is so amended accordingly.

The applicant’s case

7.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.

8.In sum, the applicant claimed for non-refoulement protection because he was afraid that his creditor would harm or kill him by if he were to return to Vietnam, as he could not repay a loan of US$50,000 owed to his creditor.

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.However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 22 May 2020. He only stated in the affirmation that he did not agree with the decision of the Board and Immigration Department, and 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

11.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.

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, the applicant cannot ask this court to re-assess the facts of his case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.

14.In assessing the applicant’s claim, the Board re-examined the applicant’s evidence on paper without an oral hearing. It is trite that there is no absolute right to an oral hearing, but a high standard of fairness has to be maintained. In this regard, the Board followed the principle and guidelines set out in ST v Betty Kwan & Anor, CACV 115/2013, and decided that the applicant’s appeal/petition could be disposed of by way of a paper review. In particular, the Board found that the applicant would not have anything useful to contribute by way of being heard in the name of overall fairness.

15.The Board found that when the applicant was before the Director, he was legally represented. Based on the applicant’s own evidence, he was never physically attacked by his creditor or his men and he had never sustained any pain or suffering caused by his creditor. His problem had no connection with any one of the Convention reasons, ie race, religion, nationality, membership of a particular social group or political opinion, as it was just a private financial dispute. There was no evidence to show that any public officials or person acting in an official capacity had threatened the applicant. The Board found that state protection is available to the applicant and internal relocation is viable for the applicant. Hence, the Board found that the applicant’s claim failed on all the applicable grounds under the USM.

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, including the decision not to have an oral hearing.

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 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

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

Dated the 22^nd 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