Doan Xuan Ky v. Torture Claims Appeal Board
|
HCAL 1036/2023 [2026] HKCFI 5264 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1036 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 3 April 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 substantiate his claim 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 27 August 2021 (“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. 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 if refouled to Vietnam, he would be harmed or killed by his creditor and the creditor’s followers due to his inability to repay a loan of 450 million Vietnamese Dong. Oral hearing 9.The applicant requested for an oral hearing of the Leave Application and his case was heard on 10 September 2026. 10.When this court asked the applicant to elaborate on the grounds of his intended judicial review, which were stated in a document annexed to his Form 86 with the title “Grounds on which relief is sought”, he just confirmed that he would rely on the grounds stated therein, and added that someone was still chasing after him to beat him in his country and he could not go back for the time being. Grounds for judicial review 11.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). 12.The contents of the said document with the title “Grounds on which relief is sought” were all very general 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. 13.As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing. He only mentioned that someone was still chasing after him to beat him in his country and he could not go back for the time being. Discussion 14.First of all, the applicant’s danger in his country 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. 15.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. 16.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. 17.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. 18.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 his case was not related to death penalty or genocide (see paragraph 39 of the Board’s Decision). 19.This court notes that the Board may have committed an error of law in stating that BOR 2 Risk was not established because the applicant’s case was not related to 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. 20.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). 21.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). 22.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. 23.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. 24.This accusation is clearly unfounded. The Board did not hold any oral hearing in its assessment of the applicant’s case. Thus, the Board never posed any questions on the applicant and did not require him to answer any of its questions. 25.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. 26.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. 27.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”. 28.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, or are completely unfounded. 29.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). 30.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. 31.As aforesaid, this court notes that the Board assessed the applicant’s appeal/petition without an oral hearing. The Board had given detailed reasons for not having an oral hearing in paragraphs 16 to 21 of the Board’s Decision. In gist, the Board was satisfied that it was reasonably clear that the applicant had provided everything he wished the Board to consider and that there was nothing either explicitly or implicitly lacking in the information before the Board. More importantly, the Board assessed the applicant’s claim based on the facts as presented by the applicant. Thus, the Board was satisfied that the applicant’s appeal/petition could be justly determined without a hearing. 32.There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the appeal/petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013). 33.Thus, it was not a must for the applicant to have an oral hearing before the Board. This court agrees with the Board that an oral hearing was not necessary. There was no procedural unfairness to the applicant when the Board accepted the factual basis of the applicant’s claims and did not challenge his credibility. Thus, the high standards of fairness required for the determination of the applicant’s appeal/petition was not compromised by not having an oral hearing. 34.As aforesaid, in assessing the applicant’s appeal/petition, the Board accepted the applicant’s claims, namely that he borrowed money from a creditor, he was asked for repayment many times and he was assaulted once when the creditor brought her followers to chase him for repayment. 35.The Board laid out its assessment of the applicant’s claims against all the applicable grounds under the USM in paragraphs 23 to 43 of the Board’s Decision, and it is not necessary to repeat the same here. 36.In gist, the Board found that the applicant’s fear only arose from his inability to repay a loan, which was a private matter. The injuries the applicant sustained from the only assault by the creditor and her followers were not so serious as to amount to torture or attain a 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. 37.Moreover, the Board found from COI that although there were materials that indicated that inefficiency was common in the Vietnamese police force and authorities, the Vietnamese government had taken actions to combat corruption and there was legislation in place to protect the applicant from being assaulted by the creditor. In fact, the applicant had never sought assistance from the police or the authorities in respect of the creditor when he was in Vietnam. 38.Furthermore, the Board had given full reasons in paragraphs 44 to 46 of the Board’s Decision for its finding that it would not be difficult for the applicant to relocate and find employment in Vietnam in order to avoid his creditor. 39.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. 40.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). 41.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. 42.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 43.For reasons aforesaid, the Leave Application is dismissed. 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
Form CALL-1 |
Summaries and metadata are generated from the judgment. Report an error
Cases cited in this judgment