Nguyen Van Chuyen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1220/2020

[2025] HKCFI 3435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1220 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 the Applicant being absent at the hearing 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:-

(i)   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 18 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 20 March 2020 (the “Board’s Decision”) in which the Board affirmed a decision of the Director of Immigration (“Director”) dated 20 June 2018 which rejected the Applicant’s claims for non-refoulement.

2.As it is usual practice that the Director should be a proposed interested party, I make an order to amend the Form accordingly on the court’s own motion.

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, he claims that he would be harmed by 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 scrutinizing 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 DOI are the primary decision‑makers.  This court will not intervene by way of judicial review unless there are errors of law or 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 exhibited the Board’s Decision and did not point to any error of law, procedural unfairness or irrationality of the Board’s Decision[2].

6.The Applicant did not attend the Hearing on 22 July 2025 despite having requested for an oral hearing.

7.Notwithstanding the Applicant’s absence, I have reviewed the Board’s Decision carefully.  The Board had considered the Applicant’s evidence (§§8-17, 41-42), as well as relevant Country of Origin Information (§§18-21), and after a meticulous analysis (§§43-60) the Board concluded that the Applicant’s claim was not substantiated as there was no real risk of harm if he returns to Vietnam (§60).

8.I am satisfied that the Board had analysed each of the applicable grounds under the Unified Screening Mechanism for non-refoulement, and after applying the correct legal principles (§27-37), and concluded that the Applicant’s case did not fall within any of the applicable grounds.  Further, the Board concluded that internal relocation was available to the Applicant in any event, having regard to the Applicant’s personal circumstances and working experience (§§22-26).

9.In conclusion, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.For the above reasons, leave is accordingly refused with an order that the Form 86 be amended as indicated above.

Dated the 13^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

[1]  target="_blank"https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001220_2020_files/the_Board's_Decision.pdf

[2] In his supporting affirmation, the Applicant asked for the Leave Application to be allowed out of time but it was actually made before the deadline which is 3 months after the date of the Board’s Decision, see: O.53 r.4(1) of the Rules of the High Court (Cap 4A).