BUI VAN THANH v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

bjbj HCAL 778/2020 [2025] HKCFI 3835 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 778 OF 2020 BETWEEN Bui Van Thanh Applicant Torture Claims Appeal Board Putative Respondent 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: be amended to Torture Claims Appeal Board , the name of the putative interested party be amended to Director of Immigration , and the decision in respect of which relief is sought be amended to Torture Claims Appeal Board s decision dated 23 April 2020 . The applicant s application for leave to apply for judicial review be dismissed. Observations for the applicant: The Leave Application By way of Form 86 dated and filed on 27 April 2020, the applicant applied for leave to apply for judicial review ( the Leave Application ) in respect of a decision by Immigration Department Toture, Claim appeal Board and the applicant stated a date 27/4/2020 in Form 86. The Torture Claims Appeal Board ( the Board ) only made one decision dated 23 April 2020 ( the Board s Decision ) regarding the applicant s appeal/petition against the decision of the Director of Immigration ( the Director ) dated 25 June 2018 ( the Director s Decision ). It is clear that the Leave Application was made in respect of the Board s Decision, as it was annexed to the applicant s supporting affirmation dated 27 April 2020. The Board s Decision can be viewed in the following hyperlink:- HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000778_2020_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000778_2020_files/the_Board's_Decision.pdf 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 ). The Board thus confirmed the Director s Decision, which rejected the applicant s non-refoulement claim. Amendments The applicant named Immigration Department Toture, Claim appeal Board as the putative respondent and named himself as the putative interested party in Form 86, when the Board should be named as the putative respondent and the Director should be named as the putative interested party. Thus, on this court s own motion, the name of the putative respondent is amended to Torture Claims Appeal Board and the name of the putative interested party is amended to Director of Immigration . As mentioned, the decision in respect of which relief is sought in the Leave Application should be the Board s Decision. Hence, it is so amended on this court s own motion. The applicant s case 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. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or even killed by his creditor and/or his men for an unsettled debt of 2 billion Vietnamese Dong. Grounds for judicial review 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). The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation. He merely stated that he was at risk of harm or even death from the police and the mafia in Vietnam in his supporting affirmation. Discussion First of all, the applicant s alleged risk that gave rise to his non-refoulement claim before the Board was from his creditor, not from the police or the mafia in Vietnam. As held in HYPERLINK "http://lrs.jud.hksarg/lrs/common/ju/ju_frame.jsp?DIS=164493&currpage=T" Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 ), 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. Thus, the applicant cannot ask this court to re-assess the facts of his case or to consider matters that were not raised to the Board, such as the alleged risk from the police or the mafia. 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 HYPERLINK "https://legalref.judiciary.hk/lrs/common/search/jud_search_ncn.jsp?selDatabase=ALL&ncnValue=2018+HKCA+524" \t "_blank" [2018] HKCA 524 ). Thus, despite the lack of any valid ground for the intended judicial review, this court will examine and scrutinize the Board s Decision for any errors of law, procedural unfairness and irregularities. The applicant was afforded an oral hearing before the Board on 12 September 2019 and the applicant was present. Hence, the applicant did have the opportunity to present his case to the Board in person. The Board gave detailed analysis and reasoning for its conclusion that the applicant would not face a real risk of torture, arbitrary deprivation of life or persecution upon his return to Vietnam. The Board found that the monetary dispute between the applicant and his creditor was a case of civil nature for debt repayment. The Board found no evidence to support that official or passive state acquiescence was involved in the applicant s perceived risk from the creditor. The injury he sustained from the only attack was not serious and fell short of the severe pain and suffering required by law to qualify for being a torture. The Board considered that if the creditor had the real intention to severely harm or kill the applicant, the creditor and/or his men could have done so in the past. The beating was a usual approach adopted by a creditor to put pressure on him to raise money for repayment as early as possible. In relation to the applicant s assertion that he was discriminated as a descendent of a traitor since his father had, before his birth, worked in French Military with ranking of second lieutenant, the Board found no concrete evidence to show that he was persecuted and prejudiced as he alleged. The applicant did not encounter any problem with his application for visa and could leave his own country freely without hindrance. This showed that he was not a target nor being treated as a descendent of a traitor of the Vietnamese government. In assessing the availability of state protection and the viability for the applicant s internal relocation, the Board had referred to the then most updated country of origin information ( ) for the applicant s country from different sources. While noting the problem of corruption and the widespread of illegal loan shark activities in Vietnam, there was evidence from reliable COI that showed the authorities has enhanced their action in cracking down loan sharks and further to proactively prevent and strictly handle loan shark related crimes. The Board considered that the applicant should be able to obtain assistance from the police and authorities if he needed it. The applicant s assertion that the police would not help him was just the applicant s speculation, as the applicant had never sought assistance from the police when he was in Vietnam. Thus, the Board found that there would be reasonable state protection available to the applicant on his return to Vietnam. The Board also considered the viability of internal relocation for the applicant. The Board found the applicant s feared threats from the creditor was a localised one, which could be reduced or negated by internal relocation. The applicant has years of work experience and it would not be unduly harsh for the applicant to relocate to other parts of Vietnam such as Ho Chi Minh City or Hanoi. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI materials 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. Thus, the applicant s alleged danger had been duly assessed but rejected by the Board. 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. As held by the Court of Final Appeal in HYPERLINK "https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=59323&currpage=T" 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 For reasons aforesaid, the Leave Application is dismissed. Dated the 26th day of August 2025 ( Irene 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: 26 August 2025 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: 26 August 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent s ref. no.: USM 12291/18/7/41/V2121 Director of Immigration Putative Interested Party s ref. no.: QA T/C 1937/18 (formerly as RBCZ 11359/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1 PAGE \* MERGEFORMAT p`S`S`S`S` hk-> hk-> hk-> hk-> hk-> h0 ! hk-> hk-> hk-> hk-> hk-> hk-> nZJ7J }q}q}q^N^N= h%s h|Hs hh(M hE c gd`G h|Hs ueUuUueu h0 ! h0 ! h0 ! {g{g{T{g{g{T{T h0 ! h0 ! h0 ! h0 ! h0 ! hU!k hU!k hU!k hY(U hY(U {#:V [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml $O}) Xp90 +PHI| PP yu 9xu5 fs+W VF7H q=. 8}d- qyI@ j!Q_ jyV` |PZ+ T ""p < 4V O&x$ A8>v ;EUC n 8r *~P(5 .}x E /,EE\} theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/> # iX # iX Windows User Normal.dotm Windows User Microsoft Office Word Title _PID_HLINKS Microsoft Word 97-2003 Document MSWordDoc Word.Document.8