Duong Van Viet v. The Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1578/2020 [2025] HKCFI 5173 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1578 OF 2020
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge (Non-Refoulement Claims) Vincent Lung:
Observations for the Applicant: Introduction 1.By a Form 86 filed on 28 July 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 9 July 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 26 March 2020. 2.I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and only the DOI as the putative interested party. 3.The Applicant requested for a hearing of this application but he was absent at the hearing. I shall deal with this application on paper. Background 4.The Applicant is a national of Vietnam. He was a taxi driver in Vietnam. One day he caused a serious traffic accident such that he had to pay for significant medical bills for the victim and for repairing the vehicle. In November 2019 he borrowed from a loan shark associated with a triad society in Vietnam with high interest and he was unable to repay. The triads then attacked him and made death threats. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Discussion 5.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant. 6.I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit. 8.The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86 nor his supporting affirmation, apart from asserting that he did not agree with the TCAB Decision and the danger was still continuing. 9.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [2-33] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [44-45, 49, 53-54, 57], the Applicant’s allegations were insufficient to make out any of the applicable grounds [46-48, 50-52, 55-56, 58-59]. In particular, the TCAB found the Applicant’s evidence to be incredible [32], and even if his evidence is to be accepted, his case was still not made out [33] as internal relocation was available on the evidence [36-43]. These are conclusions that the TCAB was fully entitled to reach. 10.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. Dated the 7th day of November 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
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Cases cited in this judgment