Case Document

100%

HCAL 1033/2024

[2026] HKCFI 5819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1033 OF 2024

BETWEEN

	Chu Van Thao	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 2 June 2024 and filed on 2 July 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 17 May 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001033_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 21 November 2023 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendment

3.In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the putative respondent, when only the Board should be so named.

4.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

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 named THUC due to his failure to repay the loan he borrowed from THUC to finance the expansion of his wooden furniture making business.

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. In his supporting affirmation dated 2 July 2023, the applicant mentioned a few matters, which are summarised as follows:-

(1)  He had no knowledge of English or Chinese so he did not know how to proceed with his application for judicial review;

(2)  He did not have the financial means to obtain concrete legal advice regarding the procedure of appeal;

(3)  His life would be in danger because his creditor and his creditor’s subordinates could have inflicted more serious harm had they intended to do so; and

(4)  He did not have any source [sic] to rely on since his family was very poor and they were unable to help him to solve his problem.

Discussion

11.First of all, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).

12.In fact, all the documents filed by the applicant in relation to the Leave Application were written in English. This indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all.

13.In respect of the applicant’s allegation that there was a lack of legal assistance, the applicant was actually provided with legal assistance during the first-tier screening of his non-refoulement claim. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.

14.Finally, the applicant’s alleged risk 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 unless there were errors of law, procedural unfairness, or irrationality in the Board’s Decision.

15.Thus, none of the matters raised in the applicant’s supporting affirmation constitutes any valid ground to challenge the Board’s Decision.

16.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).

17.Thus, despite the fact that the applicant did not 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.

18.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 12 March 2024. The applicant was present and was thus given the chance to present his case to the Board in person.

19.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its analysis and findings in relation to the applicant’s claims were laid out in paragraphs 59 to 63 and 64 to 67 of the Board’s Decision respectively, and it is not necessary to repeat the same here.

20.In gist, the Board found significant inconsistencies in the applicant’s evidence. The Board found that the applicant was not a witness of truth and his evidence could not be relied upon to prove any of the matters that he asserted. The Board found no evidence to support that the applicant borrowed money from a loan shark to fund the expansion of a furniture business.

21.The Board considered that the existence of a loan that the applicant failed to repay was fundamental to his case. In the absence of a loan, the question of repayment would not arise and the pursuit of the applicant by a moneylender would fall away. The Board found no credible evidence that the applicant was assaulted as he claimed or that he would be at risk from a loan shark if he returned to Vietnam.

22.Thus, on the whole of the evidence, the Board found that the applicant would not face a real risk of harm if he returned to his country, and concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

23.The Board did not consider availability of state protection and viability of internal relocation. However, as the Board found that the applicant did not face a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution in his country at all, it is not necessary for the Board to consider the availability of state protection.

24.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).

25.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm whatsoever, it is not necessary for the Board to further consider internal relocation.

26.The finding of facts relating to a non-refoulement claim, including the assessment of evidence 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.

27.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.

28.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

29.For reasons aforesaid, the Leave Application is dismissed.

Dated the 21^st day of October 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 21/10/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 21/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 22525 Director of Immigration Putative interested party’s ref. no.: QA T/C 1153/23 (formerly RBCZ 5001190/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)