Tran Van Doan v. Torture Claims Appeal Board
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HCAL 1033/2023 [2026] HKCFI 5269 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1033 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 27 June 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 16 March 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant had failed to establish a case for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 May 2022 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s claim for non-refoulement protection. Amendments 3.The applicant named the Board / Non-refoulement Claims Petition Office and the Director as the putative respondents and did not name any putative interested party in Form 86. 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.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.Thus, this court 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. Late application 7.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 8.However, the applicant filed Form 86 on 27 June 2023, which was 3 months and 10 days after the Board’s Decision (made on 16 March 2023). The applicant was hence late for 10 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 9.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
10.The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. Since the applicant was absent at the oral hearing before this court on 10 September 2026, no reason was given by the applicant for the delay at all. 11.Although a delay of 10 days is not substantial, there is simply no reason for this court to grant an extension of time to the applicant to file the Leave Application when no explanation was given. 12.More importantly, there is no merit of the intended judicial review at all as discussed below. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone. 13.However, for the sake of completeness, this court will still examine the merits of the Leave Application. The applicant’s case 14.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. 15.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor TRAN Van Long and his creditor’s followers due to his inability to repay a loan of 600 million Vietnamese Dong. Oral hearing 16.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 10 September 2026. 17.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits. 18.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court. Grounds for judicial review 19.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). 20.The applicant annexed a document with the title “Grounds on which relief is sought” to his Form 86. The contents of the said document were all very general allegations and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the said grounds to make the Leave Application, this court will still deal with the grounds as discussed below. Discussion 21.As mentioned, all the grounds contained in the document with the title “Grounds on which relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision. 22.There are a total of 6 paragraphs under the heading “Grounds” in the applicant’s said document. Paragraphs 2 and 5 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraphs 1, 3, 4 and 6 of the grounds are relevant to the Leave Application. 23.In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. 24.It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either. In any event, the Board did assess the applicant’s risk of right to life and concluded that the applicant faced no BOR 2 Risk[1] if refouled, as there was no evidence whatsoever that any circumstance would subject the applicant to any risk of death penalty or genocide in his home country (see paragraph 60 of the Board’s Decision). 25.This court notes that the Board may have committed an error of law in stating that “The text of BOR2 and cases regarding BOR2 equivalent in other jurisdictions illustrate that only a state party can violate the right to life by the imposition of death penalty or genocide.” As held by the Court of Appeal in Kulwinder Kaur v Director of Immigration and another [2022] HKCA 48, “The authorities establish that the right to life is also violated by extra-judicial killings by State agents or by non-State actors, where the State fails to take steps to avoid a threat to life emanating from non-State actors or private persons.” Thus, violation of right to life is not confined to imposition of death penalty or genocide by a State as suggested by the Board. 26.Nevertheless, as the Board found that the applicant’s appeal/petition failed under BOR 3 Risk[2], there was no arguable ground for any BOR 2 Risk (see Kulwinder Kaur v Director of Immigration and another, supra, at paragraph 59). The Court of Appeal acknowledged there was some force in the argument that issues under the BOR 2 Risk are not separable from those under the BOR 3 Risk, and this essentially meant that upon determining that there is no BOR 3 Risk, there is no arguable ground for any BOR 2 Risk (see Re Doyaoen Josephine Biba [2025] HKCA 482, at paragraph 27). 27.The applicant did not specifically challenge the Board’s findings on the BOR 3 Risk on any basis other than the general grounds as mentioned in the said document. This court also finds no flaw in the Board’s findings in this regard. Thus, there is no reasonably arguable ground in the factual context of the applicant’s case, and the aforesaid error of law, taken on its own, would not vitiate the Board’s Decision (see Kulwinder Kaur v Director of Immigration and another, supra, at paragraph 60). 28.In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board. 29.In paragraph 4 of the grounds, the applicant alleged that the adjudicator was procedurally improper and unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was unreasonably required to answer. 30.There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all. 31.In paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational. 32.The Board had in fact provided a detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all applicable grounds under the USM to claim non-refoulement protection. The Board’s rejection of his non-refoulement claim was a decision made after due consideration of the law (save for the error of law as aforesaid) and the evidence placed before it. If the applicant intends to challenge the finding of facts by the Board, it is not permissible in an application for judicial review. 33.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”. 34.Thus, none of the grounds that were contained in the applicant’s said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case. 35.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). 36.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. However, the error of law as identified above has already been discussed and it is not necessary for this court to discuss it again in the ensuing paragraphs. 37.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 7 March 2023 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person. 38.The Board laid out its findings on the credibility of the applicant in paragraphs 38 to 40 of the Board’s Decision, and it is not necessary to repeat the same here. 39.In gist, the Board found that the applicant’s 8-months’ delay in lodging his non-refoulement claim after his arrest, coupled with his engagement in illegal work in Hong Kong during the period, cast serious doubt on the veracity of his claims. The applicant had not suffered serious harm at the hands of his creditor before he left Vietnam. His alleged sufferings did not reach a minimum level of severity. Moreover, the Board found the number and nature of inconsistencies and implausibility in the applicant’s evidence were serious and had undermined its reliability. 40.On the totality of evidence, the Board was not convinced that (1) the applicant came to Hong Kong because of the alleged threat to harm him by the creditor; (2) the applicant suffered any physical or mental pain and suffering as he had alleged, (3) the applicant’s creditor and his followers, if they ever were, were still chasing the applicant all over his home country and want to harm him. The Board found that the centrepiece of the applicant’s story did not stand. The Board found him dishonest and unreliable, and that he was not a genuine non-refoulement claimant. 41.Despite the finding of the applicant’s credibility as summarised above, the Board did go on to assess the applicant’s case with the facts as claimed, but the Board found that the applicant still could not succeed in his claim for non-refoulement protection. 42.The Board found that the applicant’s fear only arose from his inability to repay a loan, which was a private matter. There was no evidence to support that the injuries the applicant sustained could amount to torture or attain the level of minimum severity. The creditor was not a state actor, and there was no element of state acquiescence in the alleged ill-treatment of the applicant. His fear of ill-treatment did not fall within any of the Convention categories. 43.Moreover, the Board found from COI that although there were materials that indicated corruption and inefficiency was common in the Vietnamese police force, the Vietnamese government had taken actions against loan sharks, illegal debt collectors and corrupt police and other civil servants. There was no evidence that the authority in Vietnam would fail to discharge its duties or tolerate any unlawful and allusive behaviour committed by an individual as a systemic practice. The Board did not accept that state protection would not be available to the applicant if he was returned to Vietnam. 44.The Board had also given full reasons in paragraphs 70 to 75 of the Board’s Decision for its finding that the applicant had many options for relocation in Vietnam. 45.Thus, the Board concluded that the applicant had failed to establish a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the USM. 46.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion (save for the error of law as aforesaid). 47.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 (save for the error of law as aforesaid), 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 (save for the error of law as aforesaid), 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. 48.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 49.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits. Dated the 16th 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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