Dao Xuan Trung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1135/2020

[2025] HKCFI 3449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1135 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the Putative Respondent; and

b.   the Director of Immigration be named as the Putative Interested Party.

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 9 June 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 13 May 2020 (the “Board’s Decision”) in which the Board affirmed a decision of the Director of Immigration (“Director”) dated 18 September 2019 which rejected the Applicant’s claims for non-refoulement.

2.As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form accordingly on the court’s own motion to ensure that the relevant parties are properly named.

Background

3.The Applicant is a national of Vietnam.  His detailed personal background, the relevant facts and procedural history have been sufficiently set out in the Board’s Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein. In short, the Applicant claims that he will be subject to threats of serious harm or even death from his creditors if he were to return to Vietnam.

Discussion

4.In a judicial review, this court does not act as a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinising the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers.  This court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board (Nupur Mst v Director of Immigration [2018] HKCA 524, §14(1)).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

5.In the Form 86 and the affirmation filed in support, the Applicant only expressed his disagreement with the Board’s Decision and did not point to any specific error of law, procedural unfairness or irrationality of the Board’s Decision.

6.The Applicant attended an oral hearing before me on 18 July 2025.  When asked if he had anything to add, he confirmed that he had not.

7.Looking at the Board’s Decision, all the available evidence was before the Board (at §§11-18), as well as Country of Origin Information (§§40-46), and after careful analysis (§§20-39) the Board came to the conclusion that the Applicant’s allegations of serious harm were not made out (§§51-60).

8.I am satisfied that the Board had analysed each of the applicable grounds under the Unified Screening Mechanism, identifying in each instance the correct legal principles (§§19, 61-84), and came to the conclusion that none was made out in light of the facts found by it (§§92-95).  Further, the Board concluded that reasonable internal relocation alternatives were available to the Applicant in any event given that the Applicant was an able-bodied adult with reasonable working experience (§§85-91).

9.I do not see any basis for the court in a judicial review to intervene.  After all, the gist of the Applicant’s factual case (even if accepted) concerns a private financial dispute with the individual creditors. There is no evidential basis to suggest that the creditors would have the means or the motivation to pursue the Applicant throughout Vietnam or to exert a corrupt influence over the Vietnam authorities in order to (i) persecute the Applicant; or (ii) shield the creditors if the Applicant seeks protection from the law enforcement authorities.

10.All in all, I do not see any errors of law, procedural unfairness or irrationality (applying the enhanced Wednesbury standard) in the Board’s Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.For the above reasons, leave is accordingly refused.

Dated the 11^th day of August 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