Tran Dinh Tung v. Torture Claims Appeal Board
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HCAL 37/2024 [2026] HKCFI 5877 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 37 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 4 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 27 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 application 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 28 September 2023 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s claim for non-refoulement protection. 3.In a document with the title “Grounds on which relief is sought”, which was annexed to the applicant’s Form 86, the applicant sought relief in respect of both the Board’s Decision and the Director’s Decision. However, at the oral hearing before this court on 15 October 2026, the applicant confirmed that the Board’s Decision should be the only subject matter of the Leave Application. Amendments 4.The applicant named the Board / Non-refoulement Claims Petition Office as the 1st putative respondent and the Director as the 2nd putative respondent, and did not name any putative interested party in Form 86. 5.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party. 6.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. 7.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 8.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. 9.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor due to his inability to repay a loan of 800 million Vietnamese Dong. Oral hearing 10.The applicant requested for an oral hearing of the Leave Application and his case was heard on 15 October 2026. 11.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 replied that he could not remember what grounds were mentioned therein. 12.After the said document was interpreted to the applicant, he confirmed that he would rely on the contents stated therein. He only added that he could not return to Vietnam because the triads were still looking for him. Grounds for judicial review 13.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). 14.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. 15.As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing and only confirmed that he would rely on the same for his intended judicial review. He only added that he could not return to Vietnam because the triads were still looking for him. Discussion 16.First of all, the applicant’s claim at the oral hearing before this court that the triads were still looking for him was not presented before the Board for assessment. Although the applicant’s case before the Board was that he was in fear of a creditor from whom he had obtained a loan which he could not repay, it was unclear whether his creditor was indeed a triad member. He only mentioned to the Board that he thought that his creditor had to be a “gang member” (see paragraph 37 of the Board’s Decision). 17.The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. 18.Thus, if what the applicant said at the oral hearing, namely that the triads were still looking for him was a new claim, it cannot be a valid ground to challenge the Board’s Decision. 19.On the other hand, if he was referring to his creditor and the creditor’s followers as the triad members who were still looking for him, his danger from his creditor and the creditor’s followers had been duly assessed but rejected by the Board. If the applicant intends to challenge the finding of facts by the Board, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision. 20.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). The applicant also confirmed that the Board’s Decision should be the only subject matter of the Leave Application. Thus, this court will consider only those grounds directed at the Board in respect of the Board’s Decision. 21.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. 22.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. 23.In any event, the Board did assess the applicant’s risk of right to life but concluded that on the totality of evidence, the applicant had failed to establish a personal and real risk of absolute and non-derogable rights under BOR 2[1] being violated if he was refouled to Vietnam (see paragraphs 102 to 104 of the Board’s Decision). 24.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. 25.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. 26.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. 27.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. 28.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. 29.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”. 30.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. 31.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). 32.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. 33.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 5 December 2023 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person. 34.The Board laid out its findings on the credibility of the applicant and its assessment of the applicant’s case on all the applicable grounds under the USM in paragraphs 44 to 121 of the Board’s Decision, and it is not necessary to repeat the same here. 35.In gist, the Board found that the applicant’s story was internally consistent as to the loan collection incidents from the creditor. 36.However, the Board found that the applicant’s fear only arose from his inability to repay a loan, which was a private matter. There was only one physical attack on the applicant. The Board did not accept that the ill-treatment, whether physical or mental, attained a minimum level of severity. The creditor was not a state actor, and there was no element of state acquiescence in the alleged ill-treatment of the applicant. Avoidance of loan repayment was clearly not one of the RC[2] reasons. 37.Moreover, the Board found from COI that although there were materials that indicated corruption and illegal moneylending were common in Vietnam, the Vietnamese government had taken practical steps to improve the protection offered to the citizens, the monitoring system to govern the professional conduct of the police forces, and to combat corruption and illegal moneylending. The Board found that reasonable state protection was available to the applicant, and there was no ground based on well-founded fear for refusing it. 38.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. 39.Although the Board did not make findings as to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755). 40.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation. 41.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. 42.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. 43.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 44.For reasons aforesaid, the Leave Application is dismissed. Dated the 21st day of October 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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