VU VAN HOA v. TORTURE CLAIMS APPEAL BOARD

HCAL 76/2023

[2026] HKCFI 3812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 76 OF 2023

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.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 July 2017 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed. 

Observations for the Applicant:

1.  The Applicant is a 56-year-old national of Vietnam who was earlier in January 2014 refused entry into Hong Kong by the Immigration Department, then some 8 months later in September 2014 he sneaked into Hong Kong and was repatriated in November 2014 to Vietnam, but shortly thereafter on 8 December 2014 he again sneaked back into Hong Kong and raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Xa Pha Le, Huyen Thuy Nguyen, Thanh Pho, Hai Phong, Vietnam. After leaving school he operated various business in cold storage and building materials to make his living, got married and raised a family with 2 children in his home district.

3.  In 2012 he and his wife started a real estate business with the help of a loan borrowed from some local money-lender to be repaid by monthly instalments with interests which the Applicant initially managed to make from the business income.

4.  However, their business did not fare well, and by end of 2013 the Applicant defaulted in the loan repayments, whereupon his creditor started to send men to threaten him and his wife, and so in January 2014 the Applicant left the country for Hong Kong but was refused entry and was repatriated to Vietnam, and after his wife had also fled the country, the Applicant again in July 2014 departed Vietnam for China, and from there he later sneaked into Hong Kong, but was shortly thereafter arrested by police and was repatriated to Vietnam in November in the same year.

5.  In December 2014 the Applicant again departed Vietnam for China, and from there he again sneaked into Hong Kong, and on 8 December 2014 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 15 August 2016 and a Notice of Further Decision dated 7 April 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

8.  On 22 August 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which the Board did not find hold any oral hearing and proceeded to deal with the appeal on papers based on the materials and information earlier submitted to the Director and available in the hearing bundle before the Board. On 7 July 2017 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

9.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from his creditor over his debts that caused him to leave his country to come to Hong Kong to seek protection but found no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 18 January 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal.

11.  By then the Applicant was however seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 7 November 2017 after discounting the month of August 2017 for the court’s vacation, the Applicant was therefore more than 5 years late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 5 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as he subsequently also failed to attend the scheduled hearing of his application without any explanation, I am unable to see any good or valid reason for his such serious delay.

14.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant had ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was a private monetary dispute between him and his creditor only without any official involvement or political element at all, and as he also failed to attend the scheduled hearing without any explanation, I do not any of these grounds reasonably arguable for his intended challenge.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his such serious delay, I refuse to extend time and accordingly dismiss his leave application.

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