Pham Huu Tue v. Torture Claims Appeal Board
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HCAL 1046/2023 [2026] HKCFI 5263 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1046 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 29 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 21 June 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 failed 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 8 July 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 at risk of being harmed or killed by his creditors named Pham Thi Mo, Nguyen Thi Luong and Duong Van Vinh (collectively the “Moneylenders”) to whom he was indebted in Vietnam and he had defaulted in repayment of his debt. 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 first said that the document was prepared by his friend and he could not recall the details contained in it. 11.After the said document was interpreted to the applicant, the applicant confirmed that he would rely on the contents stated therein, and added that he wanted to stay in Hong Kong as his debt was still outstanding. Grounds for judicial review 12.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). 13.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. 14.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 his debt was still outstanding, and he wanted to stay here. Discussion 15.First of all, the applicant’s danger arising from his debt 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. 16.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. 17.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. 18.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. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either. 19.In any event, the Board did assess the applicant’s risk of right to life but it did not consider that the applicant faced risk of life danger contemplated under BOR 2[1] if refouled to Vietnam (see paragraphs 87 and 88 of the Board’s Decision). 20.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. 21.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. 22.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. 23.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. 24.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 and the evidence placed before it. 25.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”. 26.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. 27.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). 28.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. 29.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 25 October 2022 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person. 30.The Board laid out its assessment of the applicant’s evidence in paragraphs 70 to 83 of the Board’s Decision, and it is not necessary to repeat the same here. 31.In gist, the Board found that the applicant provided inconsistent and contradictory evidence in relation to the circumstances surrounding his loans. Cumulatively, those inconsistencies between the different accounts led the Board to conclude that the evidence in relation to the loans was untrue. The Board further found that beyond the applicant’s basic personal and family details, almost all aspects of his evidence were marked by mobility, irreconcilable inconsistencies, and at times, implausibility. The Board was not satisfied that the applicant’s core account of being indebted to the Moneylenders and fearing harm from them for not having repaid the loans was credible. The Board rejected his evidence in this regard. 32.Moreover, the Board found that even if the applicant’s case was accepted, the Board found that the Moneylenders had not seriously intended to harm or kill the applicant. The Moneylenders had taken no action for 12 years since the applicant’s default on repayment. The Board considered that the only reasonable conclusion was that they did not in fact seriously intend to harm the applicant, and that their aim was simply to frighten him into finding the money by any means possible so as to repay the loan. 33.The Board therefore concluded that the harm and risk the applicant was likely to face on his return to Vietnam was low. 34.In its assessment of the applicant’s claims on all the applicable grounds under the USM, the Board found that the applicant’s fear only arose from his inability to repay a loan, which was a private matter. Even on the basis of the applicant’s account, the threat administered by the Moneylenders did not attain the minimum level of severity required. 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. 35.Moreover, the Board found from COI that despite setbacks of the Vietnamese government, state protection of an adequate standard was available to the applicant to prevent or negate the risk and harm from the Moneylenders. The Board was satisfied that the Vietnamese government had taken steps to combat corruption, improve police efficiency and effectiveness, and protect its citizens. 36.Given its findings as summarised above, the Board found that the question of internal relocation did not arise. Despite that, the Board had given reasons in paragraphs 96 to 97 of the Board’s Decision for its view that the applicant could relocate without undue hardship in Vietnam. 37.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. 38.The finding of facts, 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. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 39.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. 40.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 41.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
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