Bui Minh Tuan and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 3468/2019 on BabelCite. This High Court CFI judgment.
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 22 November 2019, the 1 st and the 2 nd applicants applied for leave to apply for judicial review (“ Leave Application ”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“ Board ”) dated 14 November 2019 (“ Board’s Decision ”) dismissing the applicants’ appeal against a decision of the Director of Immigra
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HCAL 3468/2019 [2025] HKCFI 3572 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3468 of 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Levy:
Observations for the Applicants: Introduction 1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 22 November 2019, the 1st and the 2nd applicants applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 14 November 2019 (“Board’s Decision”) dismissing the applicants’ appeal against a decision of the Director of Immigration (“Director”) dated 16 May 2017 (“Director’s Decision”) rejecting the applicants’ non-refoulement claim on all applicable grounds The Board’s Decision can be viewed at the following hyperlink: - 2.In their Form 86, the applicants did not name any interested party. As the Director should have been the interested party, the Form 86 will be amended accordingly on the court’s own motion. 3.The applicants are husband and wife. The basis of their claims was that they would be harmed or killed by creditors for the unpaid loans they owed. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision. 4.At the request of each of the applicants for requested a hearing of the Leave Application, this court scheduled a hearing on 24 July 2025. Upon the court’s inquiry from the Immigration Department of each of the applicant’s updated address, the court received a fax letter dated 2 June 2025. According to the information stated in the said fax, the 1st applicant had absconded since 11 April 2024. Hence, a notice of hearing with a reminder[1] of the consequence of absence dated 17 June 2025 was sent to both applicants at the 2nd applicant’s last known address by ordinary post. Neither of the applicants turned up at the hearing. Before the hearing, each of the applicants had been telephoned at their given telephone numbers separately but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post. 5.In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court. The applicants’ grounds 6.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicants’ materials adduced. 7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. 8.In their Form 86 and supporting affirmation, the applicants did not raise any grounds for judicial review. The Board’s reasons 9.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, in assessing the risks faced by the applicants, the Board concluded that the injuries each of the applicants suffered did not reach the requisite severity, as there was no medical evidence to substantiate the allegations of assaults and injuries sustained. It further found that there was no state acquiescence as the applicants did not report the incidents to the local police station. The Board also found that there was insufficient evidence that the creditors or their subordinates were triad members or had connections with government or other officials, and that the applicants’ claims were in the nature of a civil debt case. Thus, the Board found that there was no real risk of harm. The Board also found that there was reasonable state protection and that internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors. Duty to conduct the credibility assessment 10.High standards of fairness require the Board to deal with the credibility assessment with a structured approach in relation to detail and specificity and internal consistency with a basis or foundation in the evidence[5] by looking at the applicant’s case in the round[6]. In assessing the veracity of the applicants’ claims, the Board was obliged to adopt an active role by drawing attention to the applicants “matters that needed clarification or elaboration so that they can be addressed by” them.[7]. 11.In the Board’s Decision, it appears that the Board did not ask the applicants’ questions or challenge their evidence contained in the hearing bundle. The Board did not conduct any credibility assessment before it assessed the risks of harm. In the circumstances, when the Board cast doubt on their credibility at [58] of the Board’s Decision on account of the applicants in not seeking “protection from Chinese authorities when they fled to China before they sneaked into Hong Kong” , the Board’s conclusion is arguably unreasonable and unfair. 12.In casting doubt on the veracity of applicants’ claims due to the alleged failure in seeking protection, the Board appears not to have raised with the applicants that this would lead to an adverse assessment so that they could be given an opportunity to explain. The Board seems to have failed to consider all relevant considerations by taking onto account evidence that might be in favour of them. It appears that the Board had not taken into account the 1st applicant’s answer in his non-refoulement claim form stating that they did not know they could seek protection in mainland China[8]. 13.In having failed to conduct the credibility assessment, which is the core element of the adjudication of the non-refoulement claim, the Board’s determination of the risks of harm is therefore arguably irrational, unreasonable and tainted with procedural unfairness. Duty to consider all evidence 14.In Ina Astuti v Torture Claim Appeal Board [2022] HKCA 448, the Court of Appeal held at [33] that because the Board hearing is a hearing de novo, the Board is required to consider all the materials placed before it. The Court further held (at [43] – [44]) that it would be a reviewable error if the Board failed to consider all matters and materials (including evidence and risk factors) raised before the Board. 15.According to the 1st Applicant’s non-refoulement claim form, it was stated that the uncle of the loan sharks was a police officer in Hai Phong. This uncle and the loan shark were to collect the debt and threatened the 1st applicant’s father[9]. 16.However, in its assessment of risk of harm (at [42] – [60] and [75] – [86] of the Board’ Decision), the Board did not mention or consider the evidence as to the police officers’ involvement in making threats and helping the loan shark to collect or enforce the debt. 17.In his notice of appeal to the Board, the 1st applicant stated:
18.The Board made no mention of the 1st applicant evidence that the loan sharks had the backing or support of the police. 19.As the Board had not considered all of the evidence as to the police backing or support, or having been involved with the loan sharks or their activities, the Board’s assessment of risk of harm, is arguably erroneous in law, unreasonable and tainted with procedural unfairness. Failure to make findings of the applicants’ injuries 20.In the Board’s Decision, the Board found that the applicants’ past ill-treatments did not reach the required level of severity. In coming to this conclusion, Board did not make finding on the alleged assaults on the applicants by the loan sharks. Referring to the absence of medical evidence, the Board stated (at [53] of the Board’s Decision) that there was no objective basis to make findings on the injuries allegedly sustained by them. 21.However, it was their evidence that the 2nd applicant sustained a permanent scar on her right lower lip as a result of one of the assaults inflicted by the loan sharks[10]. She did not see a doctor due to the lack of means. 22.The existence of any physical evidence of past torture or ill-treatment, such as scars are relevant in determining a non-refoulement claim arising from a real risk of torture or ill-treatment. 23.As the UNHCR noted in the “Istanbul Protocol”[11] at [393],
24.Clinicians might, upon inspection of scars or other physical evidence of injury, be able to form views as to the possibility of torture or ill-treatment. For example, they may be able to give opinion on whether certain lesions are consistent with, or even diagnostic of, certain methods of ill-treatment, which would be probative of the truth of the incidents described by the claimant[12] : see also LB v Torture Claims Appeal Board [2024] 6 HKC 579; and G v Torture Claims Appeal Board [2019] HKCFI 1252. 25.In view of the comment the Board made in relation to the lack of medical evidence, and its finding stated in [53] of the Board’s Decision, a high standard of fairness would require the Board to exercise its power under s.37ZC of the Immigration Ordinance to ask the 2nd applicant to undergo a medical examination. 26.In the circumstances, the Board’s failure to properly consider, or make findings on the applicants’ evidence of injuries renders the Board’s Decision erroneous and unreasonable and is tainted with procedural unfairness. State protection and internal relocation 27.In its assessment of state protection, despite the Board’s references to the COI in the Director’s Decision, the COI that the Board considered does not appear to relate to the specific risks faced by the applicants. The various COI cited by the Board appears to have been mostly related to anti‑corruption efforts. They do not shed light on the efforts made by the relevant state authorities on illegal and violent debt collection and loan sharking. It is noted that the Board cited two outdated news articles concerning illegal debt collection. However, none of these articles had concerned incidents involving the police collusion and their backing of loan sharks, which were the basis of the applicant’s claim. 28.Arguably, there is no COI before the Board that supports the Board’s finding of the reasonable availability of state protection against harm from loan sharks that are backed or supported by the Vietnamese police, or from the police who are colluding with such loan sharks. The Board’s conclusion on the availability of reasonable state protection is therefore arguably irrational. The Board has failed to demonstrate that it had properly and independently assessed COI. Thus the Board’s Decision is tainted with procedural unfairness: A, B, C, D and E v Torture Claims Appeal Board, [2024] HKCA 471 at [33] – [34]. 29.The applicants’ case of police collusion also renders the Board’s conclusion on the reasonable viability of internal relocation irrational. The Court of Appeal recently held in Asif Muhammad v Torture Claims Appeal Board [2025] HKCA 630 at [26] – [29] that where the police are one of the sources of harm or are related to the other persons who are sources of harm, it is irrational for the Board to fail to consider the possibility of the police being able to locate the claimants. 30.In the circumstances, the Board’s omission to consider the possibility of the Vietnamese police (who allegedly backed or colluded with the loan sharks) being able to locate the applicants in the event of refoulement would similarly renders the Board’s Decision irrational. 31.For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness. Conclusion 32.In the premises, and for all the given reasons, I am of the view that the applicants’ Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 33.Accordingly, I grant leave to the applicants to apply for judicial review of the Board’s decision, and direct that they shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party. Orders 34.The Form 86 be amended on the court’s own motion. 35.Leave is granted to the applicants to issue a judicial review application against the Board’s Decision. 36.The applicants shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party. Postscript 37.In view of the fact that the 1st applicant was reported to have failed to report to the Immigration Department, and that both of the applicants were absent from the hearing, I will ask my clerk to serve a copy of this decision on the Department of Justice so as to enable the latter to issue proper proceedings in the event of the applicants’ failure to comply with [36] above. Dated 20th 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] “If the Applicant does not appear at the hearing, he/she will be deemed to have waived his/her right to make oral submissions at the hearing and the Court will deal with his/her application according to the paper already placed before the Court”. [2] Re Zunartyah [2018] HKCA 14 at [23]. [3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142]. [4] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. [5] See generally UK Home Office, “Assessing credibility and refugee status in asylum claims lodged on or after 28 June 2022” at pp.44-45; UNHCR, “Beyond Proof: Credibility Assessment in EY Asylum” (May 2013) at p.41. [6] MS v Torture Claims Appeal Board [2021] HKCA 979 at [24]. [7] ST v Betty Kwan [2014] 4 HKLRD 277 at [39]-[40]. [8] See [30] & [32] in the 1st Applicant’s answer to Question 35 of his non-refoulement claim form. [9] The 1st Applicant’s answer to Question 35 of his non-refoulement claim form. [10] The 1st applicant’s answer to Question 35 of his non-reofoulement claim form; see also [8.11] of the Director’s Decision [11] “Istanbul Protocol - Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (2022), Background Note, Chapters III and V. [12] The Istanbul Protocol at [190] [199],[ 228]-[230], [265], [399] and [417]-[424]. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment