Le Cao Su v. Torture Claims Appeal Board

HCAL 862/2022

[2025] HKCFI 4923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 862 OF 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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 “Director of Immigration” be added as the putative interested party.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  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 31 August 2022, 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 2 June 2022 (“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/2022/HCAL000862_2022_files/the_Board's_Decision.pdf

2.The Board found that the applicant was unable to make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 18 August 2021 (“the Director’s Decision”).

Amendments

3.In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the 1^st putative respondent, the Director as the 2^nd putative respondent but did not name any putative interested party.

4.As the decision in respect of which relief is sought is just the Board’s Decision, the Board should be named as the only putative respondent and the Director should be named as the putative interested party.

5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a putative respondent at all.

6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

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 lived in fear of a loan shark named Bui Van Cuong (“BUI”) and his underlings who lived in his home area in Vietnam. The applicant claimed that they had threatened him in the past in relation to a 900 million Vietnamese Dong money loan that BUI had extended to him but which he had not fully repaid. The applicant feared that BUI and his people would harm, ill-treat and/or kill him if he were refouled to Vietnam.

Withdrawal of the Leave Application

9.The applicant filed an ex parte application by way of an affirmation dated 22 May 2025, in which he applied to withdraw his application for judicial review and to cancel his case because it was safe for him to return to Vietnam. He also confirmed that the application was made out of his own free will and he understood the consequences of cancelling Form 86, namely that he was bringing the Form 86 to an end even though the merits of which had not been determined, and the decision that he had appealed against would remain in force. The applicant also wrote a letter to the Registrar of this court dated 22 May 2025 making the same application for withdrawal and cancellation of the Leave Application.

10.There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application even though he had previously requested one.

11.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

12.Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

13.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).

14.The applicant annexed a document titled “Grounds on which relief is sought” to his Form 86. The relevant contents of the document are reproduced as follows:

“6. The Director of Immigration suggested that I change another location to live to avoid the pursuit of the by my creditor, but that is completely unfeasible. There will be many difficulties and obstacles that I will have to face in the new location. My health is not good, I am also not an active person is another factor that may disadvantage me in the labour market. There is no guarantee that I will be able to adapt to the new place and find a job to earn money to support myself.

7. Moreover, with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out my new residence. So, I can be very dangerous if I tries to escape to another place in Vietnam.

8. The Decision of the Adjudicator is clearly unsafe. It is also wrong for the Adjudicator to rule the Applicant as unreliable.

9. The Director of Immigration’s decision to refuse the Applicant’s claim was also wrong.”

Discussion

15.The grounds as stated above are directed at both the Director and the Board. However, 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).

16.Thus, this court will only consider the grounds directed at the Board in respect of the Board’s Decision. As such, only paragraph 8 of the grounds is relevant to the Leave Application. The applicant asserted in paragraph 8 that the decision of the Adjudicator was clearly unsafe and it was wrong for the Adjudicator to rule the applicant as unreliable. However, the applicant failed to identify how or why the Board’s Decision was unsafe and wrong.

17.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

18.Thus, the general assertions that the Board’s Decision was unsafe and wrong cannot help the applicant at all.

19.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).

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

21.In assessing the applicant’s appeal, the Board held an oral hearing on 12 January 2022 and the applicant was present. Thus, the applicant did have a chance to present his case to the Board in person.

22.The Board found, and the applicant agreed, that the applicant’s case that he feared harm from BUI were personal matters and did not involve the Vietnamese government or state. BUI and his people were not state actors and had only verbally threatened him in the past. They had never physically abused him.

23.The Board considered that the number and nature of inconsistencies as well as the applicant’s general reluctance to try to recollect key events and evidence were sufficiently serious such that they undermined the reliability of his story. The Board also found that the applicant’s delay in seeking protection until after his detention upon arrest cast doubt on his credibility and his intention to seek protection.

24.In considering the evidence, the Board found no or no reliable evidence to show (and the Board did not accept) that:-

(1)  BUI or his people would harm or kill the applicant if he were to return to Vietnam. The Board considered that if BUI had the real intention to severely harm or kill the applicant, he had ample opportunity to do so before the applicant left Vietnam. The verbal threats directed at the applicant were more likely made simply to put pressure on the applicant to repay.

(2)  The applicant faced risk throughout Vietnam.

(3)  The applicant suffered injuries to the required severity.

(4)  The state of Vietnam was unwilling to help the applicant for a Convention reason.

25.The Board noted that while there were country of origin information (“COI”) materials which raised doubts as to the effectiveness of the police in Vietnam, there were also objective COI which showed that the Vietnamese government had taken practical steps to maintain public order and safety within its territory, to improve effectiveness and to monitor the conduct of the national police. The Board concluded that sufficient state protection would be available to the applicant if he were refouled.

26.With its findings that the applicant did not face a real risk of torture, ill-treatment, arbitrary deprivation of life and persecution as summarised above, the Board noted that it was not strictly necessary for it to deal with the question of internal relocation. Nevertheless, the Board did consider the viability of internal relocation for the applicant as a matter of caution.

27.The Board found that the applicant’s feared threats from BUI was a localised one. If the applicant were afraid to return to his home area, there was no reason why he could not relocate to other parts of Vietnam and stay there without undue hardship. The applicant, being an able-bodied mature adult with education up to secondary school level and around thirty years of work history, could move to stay in cities such as Ho Chi Minh City or Da Nang. He had not experienced any impediment in either places, and these cities were sufficiently distant from his home area such that the chances of BUI or his people being able to locate him would be further reduced.

28.The finding of facts was solely within the ambit of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

29.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.

30.Thus, there is no merits in the Leave Application at all.

31.Moreover, as the applicant had confirmed that it would be safe for him to return to Vietnam, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

32.It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

33.Thus, even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for him to return to his own country. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

34.It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

35.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

36.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 15^th day of October 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