NGUYEN QUOC VIET v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2803/2019

[2025] HKCFI 1778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2803 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

1.   The Form 86 be amended on the court’s own motion.

2.   Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.   The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

4.   The Secretary of Justice be served with a copy of the decision, and to issue the appropriate application if necessary.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 24 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the  decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 12 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) in Chinese dated 23 July 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  In the Form 86, the applicant named the Board as well as the Director as the proposed respondents and did not name any interested party.  As the Board should have been the proper respondent and the Director the interested party, the Form 86 shall be accordingly amended on the court’s own motion.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing 10 April 2025.  However, the applicant was absent from the hearing.  It was only after the hearing the court came to know that the notice of hearing dated 17 March 2025 was returned undelivered. Hence, this court scheduled a new hearing date on 26 June 2025 after the court received from the Immigration Department the applicant’s updated address. Before the scheduled hearing, a notice of hearing with a reminder[1] of the consequence of absence dated 13 May 2025 was sent to the applicant’s last known address by ordinary post.  The applicant did not turn up at the hearing. Several phone calls were made to the applicant’s given telephone number before the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

4.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

5.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

6.  The applicant was a national of Vietnam.  He surrendered himself to the Immigration Department on 20 June 2017 and raised a non-refoulement claim on the same day.  He claimed that he entered Hong Kong without permission on 16 June 2017 by concealing himself underneath a truck travelling from Shenzhen. The applicant’s claim was considered under all applicable grounds - the risk of torture^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5] under the USM.^[6]  The basis of the claim was that he would be persecuted by the Vietnamese government over its attempts to resume a piece of farmland (“Land”) that the applicant inherited.

7.  The applicant stated that he and his two brothers inherited the Land from their parents after the latter died.  Since the brother had indicated that they would not claim the ownership of the Land, the applicant therefore regarded himself as the only owner.  In around 2010, the applicant together with 5 other families received offers from the Ministry of Finance and the General Department of Land Administration concerning the sale of their respective lands to the latter. The applicant believed that the offer was too low for the Land and rejected the offer.

8.  In March 2017, about 10 uniformed government officials came to the applicant’s village and demanded the applicant and the villagers to sell their land to the government at a reserved price. A quarrel ensured. Several hours later, about 7 police officers attended the scene.  Fourteen villagers, including the applicant, started to attack the government officials with wooden sticks and mud.  The applicant fled and went to Mainland China on the same day but 3 of the villagers were arrested. The applicant stated that the arrested villagers were imprisoned from 6 to 12 months.

9.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

Board’s hearing and the Board’s Decision

10.  On 4 April 2019, the applicant attended a hearing before the Board, during which he gave oral testimony.

11.  The Board found that the applicant’s account lacked credibility and that the core issues of the applicant’s claim were inconsistent and vague.  The Board therefore rejected his evidence and found that there was no real risk of harm. The Board made no findings as to state protection or internal relocation.  The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

12.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

The applicant’s grounds

13.  The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief.

Discussion

Credibility assessment

(i)  On the alleged ownership of the Land

14.  In the present case, the centerpiece of the applicant’s claim was the applicant’s assertion that he was the owner of the Land, and the government’s high-handed approach in its attempts to force him to sell.  The Board did not accept that the applicant’s alleged ownership of the Land as asserted. In rejecting this part of the applicant’s evidence, the Board stated (at [77]) that the applicant’s explanation that the Land was not transferred into his name was unconvincing. It stated that if the applicant had been paying for the property tax for the Land for 20 years, and that he was looking for fair compensation from the Government, it “ could not see why [the applicant] would have failed to complete the conveyancing formalities.  One has to bear in mind the reality that the compensation will be given to the land owners, or the successors-in-title, in which case included his siblings.”

15.  In non-refoulement claims, a decision-maker is not entitled to apply his or her own common sense; make own assumptions, conjecture or speculations as to what ought to have happened: see ST v Betty Kwan [7] and TI v Winston Leung [8]. It would appear that the Board’s decision in rejecting the applicant’s claim was substantially based on its own assumption or common sense in relation to the legal practice for the registration of land ownership.  In the circumstances, the Board’s finding in this regard seems to be arguably unreasonable and wrong.

(ii)  On the Government’s resumption of the Land

16.  The Board also rejected the applicant’s evidence regarding the Government’s attempts to resume the Land.  In [78]-[81] of the Board’s Decision, the Board stated that since the Land was still intact, the Government could have acquired it very quickly if it really wanted it.  The Board even stated that the applicant had never mentioned that the Vietnamese Government had compulsorily acquired the land of the 5 families who had received offers. The Board found it implausible that the relevant authorities would not have contacted the applicant’s brothers who were the successors-in-title.

17.  The Board’s finding above that there was no evidence of the Government’s compulsory assumption of the villages’ land and the Land is plainly not supported by the applicant’s evidence that the Board had summarized in [14] and [15] of the Board’s decision. Although there was no specific reference to the 5 families stated in [13] of the Board’s Decision concerning this part of the evidence, it is however plain that the incident narrated in [14] and [15] of the Board’s Decision at least concerned the Land. Thus, arguably, the Board had erred in this finding in relation to a very important aspect of the applicant’s evidence.

18.  Should the Board have doubt as to whether the 5 families were also the villagers referred to in the incident stated in [14] and [15] of the Board’s Decision, high standards of fairness would have obliged the Board to clarify from the applicant and give him a fair opportunity to respond, explain or otherwise deal with its concerns before rejecting the applicant’s evidence as untrue: Re Masud Md[9] and the rule in Browne v Dunn[10] which applies to Board proceedings[11].

19.  The Board did not appear to have complied with the rule in Browne v Dunn.  It is therefore reasonably arguable that the Board’s Decision is tainted by procedural unfairness and does not meet the required high standards of fairness.

20.  Furthermore, the Board also seemed to have made the similar error in applying its own assumption in stating at [80] of the Board’s Decision thaton the papers, the applicant and his two brothers were successors-in-title of the Land and it “find it implausible that the authorities had not even made any enquiry with them”. This finding was clearly based on the Board’s own speculation, and is plainly unreasonable and irrational.

21.  For these reasons, the Board’s assessment of credibility is unreasonable and tainted by procedural unfairness.

22.  I consider that the Board’s credibility assessment is arguably tainted with error.

(iii)   On the applicant’s fear of being wanted by the government officials

23.  In the Board’s Decisions at [82] and [83] ,  the Board did not accept that the applicant’s asserted fears of the government officials on the basis that if “they just wanted to talk to him about the compensation matters”, the applicant would have no fears as he had previously refused to accede to their request. 

24.  Similarly, the Board’s assessment on the applicant’s lack of fears was plainly based on the Board’s conjecture. The conclusion based on the Board’s own conjecture is arguably procedurally unfair.

25.  Although the Board had referred to the relevant COI in [71] of the Board’s Decision, the Board, when conducting the credibility assessment, seemed to have failed to properly take into account the relevant COI regarding land seizures or expropriations by the Vietnamese government and the ensuing consequences of arbitrary arrests and detention faced by people who protested or resisted the government actions.  In having failed to recognize that the COI regarding land seizures that tend to support the applicant’s case if read objectively, the Board’s assessment of risk of harm is also tainted by procedural unfairness.

26.  The Board is duty-bound to consider all materials placed before it in making its risk assessment, and it is not restricted to only take into account the parameters of what was presented in the non-refoulement claim form.  High standards of fairness and anxious scrutiny require a decision maker to show in his or her reasoning that every factor which might be in favour of an applicant has been properly taken into account: See Ina Astuti v Torture Claim Appeal Board[12] and R (YH) v Home Secretary[13].

Failure to consider state protection and internal relocation

27.  As the Board hearing is a hearing de novo, the Board has a duty to properly consider and make findings on the viability of internal relocation and state protection despite its adverse credibility assessment: A, B, C, D and E v Torture Claims Appeal Board[14] and Ina Astuti v Torture Claim Appeal Board[15].

28.  The Board’s lack of findings as to state protection and internal relocation arguably unreasonable and procedural unfair.

Conclusion

29.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

30.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

31.  Since this court received information from the Immigration Department that the applicant has failed to report to the Director as required, I will therefore direct my clerk to also send a copy of this decision to the Secretary of Justice, who should without delay take the necessary action to dispose of the case in the event that the applicant fails to issue the originating summons within the stipulated time.

Orders

32.  The Form 86 be amended on the court’s own motion.

33.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

34.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

35.  The Secretary of Justice be served with a copy of the decision, and to issue the appropriate application if necessary.

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