Vu Dinh Chinh v. Torture Claims Appeal Board
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HCAL 2178/2023 [2026] HKCFI 4715 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2178 OF 2023 BETWEEN
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:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 5 December 2023, 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 29 November 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 17 November 2020, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named “toture claims Appeal board” and “Director of Immigration Department” as the putative respondents and did not name any putative interested party. 4.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party. 5.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 6.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. 7.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he feared being harmed or killed by a money lender called Nqa as he was unable to repay a loan of 800 million Vietnamese Dong obtained from Nqa. Disposal on paper 8.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 9.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). 10.The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 5 December 2023. 11.In the said affirmation, the applicant merely stated that he would face a genuine and substantial risk of being subject to torture or even killed by his creditor and his men since he was insolvent. Discussion 12.First of all, the applicant’s alleged risks from his creditors had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 13.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). 14.Thus, despite the fact that the applicant failed to 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 as aforesaid. 15.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 6 July 2023. The applicant was present and was thus given the chance to present his case to the Board in person. 16.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its consideration of the applicant’s claims was laid out in paragraphs 51 to 71 of the Board’s Decision, and it is not necessary to repeat the same here. 17.In gist, the Board accepted that the applicant borrowed money from a money lender and was unable to continue to pay his loan when his business failed due to factors out of his control. The Board therefore accepted that the applicant feared harm if he returned to Vietnam due to the physical attack and ongoing threats by his creditor. 18.However, the Board noted that there was no attempt by Nqa to kill the applicant. The circumstances of the applicant’s case would indicate that Nqa, who had the opportunity but did not act upon it, did not intend to kill the applicant. The applicant’s family had not been harmed and the applicant only indicated that Nqa’s associates still went to his home periodically to ask for his whereabouts. 19.Moreover, the Board found from country of origin information (“COI”) that the Vietnamese government had recognised the seriousness of the issue of illegal moneylending and had directed its authorities to address it. Police were proactive in investigating illegal moneylending networks and prosecution of those networks had occurred. In these circumstances, while acknowledging the problem of corruption in Vietnam, the Board was not satisfied that the applicant could not obtain assistance from the authorities if he were to be threatened by the loan shark. 20.Furthermore, accepting that the applicant might face a risk of harm in his home locality, the Board was satisfied that should he be threatened, and police assistance not be forthcoming, the applicant could safely relocate elsewhere in Vietnam. The Board had given its full reasons for the finding that internal relocation was a viable option to the applicant in paragraphs 60 to 71 of the Board’s Decision. This court agrees that the Board’s finding in this aspect was fully justified. 21.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 22.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 23.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. 24.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 applicant has failed to establish such a claim and hence leave must be refused. Conclusion 25.For reasons aforesaid, the Leave Application is dismissed. Dated the 19th day of August 2026
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