NGUYEN THANH HAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1850/2019

[2025] HKCFI 330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1850 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 oral submissions by the Applicant in open court;

The Leave Application be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Nguyen Thanh Hai (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) issued on 20 June 2019 but mistakenly dated 20 June 2018 (see §17-19 below) (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 April 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Vietnamese. He was born on 28 October 1982 in Hai Phong City, Vietnam. He was divorced. He received 13 years of education and had 10 years of work experience as a tractor operator. He also operated his own construction business (“Business”) with a partner (“Partner”) from 2012 to 2013.

The Claim

3.  In mid-October 2013, the Applicant and Partner borrowed VND 800 million (“Loan”) from a loan shark with triad society background (“Creditor”). The Loan was due in one month and the monthly interest rate was 50%. The money was to be applied towards a highway construction project with a Korean company (“KWC”). Unfortunately, in the next month after his borrowing of the Loan, KWC shut down without paying anything to the Applicant. The Applicant was unable to pay back the Loan because he had used it to pay rent for equipment and workers’ wages for the project.

4.  The Creditor took away the equipment at the construction site and asked the Applicant and Partner to pay back VND 600 million within a month. Knowing that they could not come up with the money, the Applicant and Partner fled to Van My Zone, Haiphong.

5.  On around 5 or 6 December 2013, the Applicant and Partner were caught by the Creditor in Van My Zone and taken to a remote grassland. The Creditor pointed his gun at the temples of the Applicant and Partner. When the Creditor learnt that they were unable to repay the Loan, he and his subordinates attacked the Applicant and Partner with a sword and threatened to kill them if the Loan was not paid back in two days (“Incident”).

6.  The Applicant and Partner were taken to the hospital. They received stitches and blood transfusion for their injuries and left the hospital the next day. It took around one month for the Applicant to recover.

7.  After leaving the hospital, the Applicant and Partner went separate ways to hide from the Creditor. The Applicant fled to Ha Giang Province for about one month and stayed there peacefully. He then moved to Ho Chi Minh City. During his stay in Ho Chi Minh City, he was followed by strangers who took photos of him. He suspected the strangers were sent by the Creditor. He then fled to Mong Cai where he stayed peacefully.

8.  While staying in Mong Cai, the Applicant learnt that the Creditor had gone to his father’s home and vandalized the furniture therein. The Creditor also threatened to kidnap the Applicant’s son, which caused his ex-wife to flee with their son. At the suggestion of his acquaintance in Mong Cai, the Applicant fled to Hong Kong to seek protection.

9.  After arriving in Hong Kong, the Applicant’s family told him that the Creditor and his people still came to his father’s home to look for him from time to time. They went to his father’s house frequently at the beginning but later on they only came during festival days.

10.  The Applicant claimed that he would be harmed or killed by the Creditor if he were returned to Vietnam.

Procedural history

11.  The Applicant arrived in Hong Kong illegally and was arrested on 13 May 2014. He was convicted, among other offences, of possession of a forged identity card on 23 May 2014 and was sentenced to 15 months of imprisonment. By a written representation of 22 June 2014, the Applicant lodged the Claim.

12.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

13.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

14.  On 3 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. In the Form 86, the Applicant named the Director and the Board as the proposed respondents.

15.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”).

16.  When the Applicant filed the Form 86, he expressly stated in writing that he did not request an oral hearing for his application. I proceeded to deal with this application of the Applicant for leave for judicial review by way of paper disposal.

17.  The Board’s Decision was dated 20 June 2018 but according to the Board’s Decision, the hearing of the Board only took place on 27 December 2018. It was illogical for the Board to hold a hearing on 27 December 2018 if it had already issued its decision on 20 June 2018.

18.  In the Form 86, the Applicant stated that the subject decision for his application was the decision of the Board dated 20 June 2019.

19.  I am satisfied that the issuing date of “20 June 2018” stated in the Board’s Decision was a typo. The same should have been issued on “20 June 2019”. In any event, the Applicant had exhibited a copy of the Board’s Decision (with the issuing date of 20 June 2018) to the Supporting Affirmation. I have considered this particular decision of the Board for the purpose of this application. I have no doubt that I have considered the relevant decision which the Applicant intended to challenge by way of judicial review in this application.

The DOI Decision

20.  The Applicant stayed in the hospital for only one night for treatment of the injuries sustained in the Incident and it took the Applicant about one month to recover. The Director was of the view that such injuries could hardly be regarded as severe.

21.  The Creditor did not kill the Applicant in the Incident but allowed more time for the Applicant to repay the Loan. This reflected that killing the Applicant was not the Creditor’s real intention. The diminishing number of visits to the Applicant’s father’s home showed that the Creditor’s interest in pursuing the Applicant was dying down. The low intensity and low frequency of ill-treatment from the Creditor in the past was indicative of low future risk of serious harm upon the Applicant’s return to Vietnam.

22.  The Applicant’s fear from the Creditor was purely a private and personal dispute which had nothing to do with the Vietnamese government’s interest or policy. There was no indication that the state of Vietnam was involved in, indifferent to or had provided any form of encouragement to the Creditor in threatening the Applicant. The Director considered the relevant country of origin information (“COI”) and found that reasonable state protection would be available to the Applicant, if necessary. There were reports that the Vietnamese government discharged its duties properly in cracking down on the loan sharks and was taking a greater responsibility on inspecting and monitoring debt collection activities.

23.  There was no objective evidence to indicate that the Creditor was powerful and influential as the Applicant asserted. There was no indication that he had extensive and influential power all over Vietnam. The Applicant’s problem was localized. The Director found that internal relocation would be viable for the Applicant. If the Applicant moved to Mong Cai or Ho Chi Minh City, the Creditor would have great difficulties in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

24.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

25.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth for the reasons given at §§101 - 157 of the Board’s Decision. The Applicant could not give even the most basic details such as the details of the Business and the details of how the money borrowed from the Creditor was used. The Board found that the Applicant fabricated his case about running a construction business, borrowing money and encountering harm from the Creditor. The Board rejected the Applicant’s case in its entirety and did not accept that he had been harmed in Vietnam due to an unpaid debt.

26.  Because the Board held that the Applicant was not at risk from the Creditor, who was the only source of risk identified by the Applicant, it found that the Applicant would not face any risk upon his return.

27.  After a careful examination of the COI, the Board further found that reasonable state protection would be available to the Applicant if he sought assistance from the Vietnamese police. According to the Applicant, he never sought help from the Vietnamese government and there was nothing to indicate that had he sought assistance from the authorities, he would be denied protection. The Board found that the availability of reasonable state protection in Vietnam negated the Applicant’s need for claiming non-refoulement protection in Hong Kong. The Board also found that internal relocation would be viable, and the Applicant could relocate to a place of his choice within Vietnam to avoid the alleged harm from the Creditor.

28.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

29.  In a judicial review, the court does not step into the shoes of the decision makers.

30.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

31.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

32.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only stated: “I am the Applicant of the above case. I do not agree with the Decision dated 20 June 2019 of Torture Claims Appeal Board. In order to give the Court a more complete picture of the present case, I would like to adduce the following document.” He then produced the Board’s Decision (dated 20 June 2018) as exhibit to the Supporting Affirmation with no other supporting documents.

33.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

34.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

35.  The Board found that the inconsistencies of the Applicant’s story were fatal because the centerpiece could not stand. The Board did not accept that the Applicant did run the Business or borrow the Loan from the Creditor. The Board found that the Applicant’s story of harm and ill-treatment from the Creditor was fabrication. The Board was not satisfied that there were substantial grounds for believing the Applicant to be in danger of being subjected to the torture risk if returned to Vietnam. The Board was also not satisfied that the Applicant faced a genuine and substantial risk of being subjected to the BOR 3 risk or that he had a well-founded fear of being subjected to the persecution risk, if returned to Vietnam. The Board found that returning the Applicant to Vietnam would not expose him to the real risk of facing the BOR 2 risk. The Board further found that sufficient and reasonable state protection was readily available to the Applicant in Vietnam and internal relocation was also viable to the Applicant.

36.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospects of success.

Conclusion

37.  In the premise, having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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