Bui Van the v. Torture Claims Appeal Board
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HCAL 108/2024 [2026] HKCFI 5003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 108 OF 2024 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 9 January 2024, 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 20 December 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 10 August 2023, 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 would be harmed or killed by a moneylender with high interest rate named NGUYEN Van Thanh and his henchmen, as he was unable to repay a loan of 450 million Vietnamese Dong (“VND”) to the moneylender. 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 9 January 2024. 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 creditor 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 13 October 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 and its assessment on the credibility of the applicant’s claims were laid out in paragraphs 119 to 136 of the Board’s Decision, and it is not necessary to repeat the same here. 17.In gist, the Board found that the applicant’s core account in his documents to the Director and testimony were not credible, and rejected his core accounts. The Board found that there were serious credibility problems such that the Board was unwilling to attach any credence regarding the following material information asserted by the applicant:-
18.Despite its findings as summarised above, the Board still considered very extensive country of origin information (“COI”) to assess the availability of state protection to the applicant in paragraphs 171 to 178 of the Board’s Decision. Even if the alleged deaths, harms, or threats of death or harms had some credence, the Board found that: (i) the applicant’s evidence did not show that the Vietnamese government was unwilling and/or unable to provide effective protection, and the applicant had not reasonably exhausted all avenues of state protection open to him; (ii) there was no clear and convincing evidence to demonstrate that the alleged deaths, harms, or threats of death or harm, were knowingly tolerated by the authorities; and (iii) there was no clear and convincing evidence to show that the Vietnamese government refused, or was unable, to offer effective protection. 19.Moreover, the Board found that according to the applicant’s profile and experience, he had not suffered any harm or threats of death or harm from his creditor or his henchmen. The Board additionally found that the applicant could reasonably live without fear of the alleged harms and undue hardship, if he relocated to Ha Noi or Nha Trang. The Board had given its full reasons for such a finding in paragraphs 181 to 185 of the Board’s Decision. 20.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 21.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. 22.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. 23.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 24.For reasons aforesaid, the Leave Application is dismissed. Dated the 2nd day of September 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