VU THE HAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 810/2024

[2025] HKCFI 1538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 810 of 2024

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr. Vu The Hai (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 8 May 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 20 December 2023 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the NRC

2.  The Applicant is a Vietnamese born on 18 November 1983 in Tinh Hai Duong, Vietnam.  He received 12 years of education up to senior secondary level.  He had worked as a farmer and casual worker after leaving school.

3.  In January 2023, the Applicant started a business in speculation of land (“Business”).  He borrowed Vietnamese Dong (“VND”) 2,000 million (“Loan”) from a moneylender (“Lender”) in Vietnam for one month.  He was required to pay VND 100 million as interest.  He used the Loan to purchase some lands (“Lands”). However, he could not sell the Lands within a short period of time as he expected.  He continued to pay interest for 5 to 6 months to the Lender.

4.  In August 2023, the Lender together with about 5 underlings came to the Applicant’s house to collect repayment of the Loan.  The Applicant was unable to repay.  They punched him for about 10 minutes.  The Lender seized the land title deed of the Applicant’s house and evicted the Applicant and his family. The Lender also demanded the Applicant to repay the Loan in one month.

5.  The Applicant and his family moved to stay with his paternal uncle (“Uncle”).  After about one month, the Lender together with about 10 underlings came to the Uncle’s place to collect repayment of the Loan.  The Applicant was still unable to repay.  They used knives to attack the Applicant.  The Applicant sustained injuries at his right arm.  The Lender also threatened to kill his family.

6.  The Applicant then fled to a friend’s place and found an agent to arrange a trip for him to come to Hong Kong.  The Applicant departed Vietnam on 7 September 2023 for China through the border control with a China permit without encountering any trouble.  He eventually entered Hong Kong illegally. He was arrested by the Hong Kong police on 15 September 2023.  He then raised the Claim.

7.  The Applicant claimed that the Lender would harm or even kill him upon his return to Vietnam because he was unable to repay the Loan.

8.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

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

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”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3”); 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 (“Refugees Convention”).

9.  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.

10.  On 22 May 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named the Board and the Director as the proposed respondents.

Legal principles applicable to judicial review

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

12.  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 [i.e. country of origin information] 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.”

13.  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 reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

14.  In the Form 86, the Applicant annexed a statement stating various grounds for his intended judicial review (“Statement”).  In the Statement, the Applicant complained that:

(1)  the Director and the Board reached their respective decisions wrongly in assessing the Claim and their decisions were not reasonable and fair;

(2)  the Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case leading to unfair outcome of rejecting the Claim;

(3)  the Board was unreasonable and procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account;

(4)  the Director failed to consider or give enough weight to COI which supported his case that the police in his country would not be able to protect him;

(5)  the Board was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him;

(6)  the Board unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  corruption and incompetency of the administration in his country was still a very serious problem and the Director had failed to take such argument into account or that the Director had failed to give enough weight to such argument before reaching his decision; and

(8)  the Board ought to allow the Appeal and the Board’s Decision was irrational.

15.  This is an application for leave for judicial review of the Board’s Decision, not the DOI Decision.  Hearing of the Appeal before the Board was de novo.  Errors, if any, made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.

16.  The Applicant’s other complaints against the Board were bare assertions without particulars or supporting evidence.  Without particulars or supporting evidence, such grounds are not reasonably arguable for a judicial review.

17.  The Applicant attended the court hearing on 8 April 2025 (“Court Hearing”) and said that the Statement was not prepared by him.  He was asked to sign on the Statement but he did not know who had prepared the Statement.  He said that the Statement did not represent his case.  As such, it is not necessary for the court to go further into those grounds stated in the Statement, suffice it to say that they have no merits and are not reasonably arguable for a judicial review.

18.  In the Supporting Affirmation, the Applicant only exhibited the Board’s Decision without other supporting documents.  He did not put forward any grounds for his intended judicial review in the Supporting Affirmation.

19.  The Applicant did not submit any objective evidence to substantiate his account about the Business.  After considering the Applicant’s evidence, the Board found the Applicant’s account about the Business vague, general and unsubstantiated.  The Board did not accept it. (§§27-28 of the Board’s Decision)

20.  The Applicant also did not submit any objective evidence in support of his account about the Loan.  After considering the Applicant’s evidence, the Board found his account about the Loan general, inconsistent, unsubstantiated. The Board also did not accept it. (§§29-37 of the Board’s Decision)

21.  The Applicant did not submit any medical or objective evidence to substantiate his assertion that the Lender and his underlings attacked him. The Board found no objective or reliable evidence before it to substantiate the Applicant’s account about the assaults by the Lender.  After considering the Applicant’s evidence, the Board found the Applicant’s account vague, inconsistent, and unsubstantiated and his explanations for the inconsistencies in evidence unsatisfactory.  The Board did not accept it. (§§38-41 of the Board’s Decision)

22.  The Applicant asserted that the Lender had extensive network because he was a gangster.  After considering the Applicant’s evidence and the relevant COI, the Board did not accept the Applicant’s assertion that the Lender had extensive power and network in Vietnam, or that the Lender had the resources to hunt for and harm the Applicant if he moved to other cities of Vietnam. (§§42-44 of the Board’s Decision)   

23.  The Board also found that in any event, reasonable state protection was available to the Applicant in Vietnam and internal relocation to large cities in Vietnam such as Ho Chi Minh City, Ha Noi, Hai Phong, Da Nang, or Nha Trang, was viable for the Applicant. (§§62-77 and 104-110 of the Board’s Decision)

24.  At the Court Hearing, the Applicant only stated that his life was still in danger in Vietnam and he wanted to stay in Hong Kong.  However, he was unable to identify any errors of law, procedural unfairness or irrationality in the Board’s Decision.

25.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board and I find none in this case.

26.  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.

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

28.  The Board found the Applicant’s various accounts of event not credible and rejected them as untruthful.  The Board did not accept that the Applicant had been ill-treated as alleged.  The Board found no reliable evidence that the alleged acts of torture had inflicted on the Applicant pain or suffering of certain severity or gravity. (§§45-48 of the Board’s Decision)

29.  In §§53-78, 83-92, 95-103 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM. 

30.  The Board found that there was no reliable evidence that the Applicant had a well-founded fear of ill-treatment that was of as sufficiently grave nature as to amount to persecution referred to in the Refugees Convention.  The Board also found that reasonably sufficient state protection was available to the Applicant in Vietnam.    

31.  The Board found no reliable evidence that the alleged acts of torture had inflicted on the Applicant pain or suffering of certain severity or gravity and for a purpose as defined in Section 37U of the Ordinance.  There was no evidence suggesting that the Applicant had been ill-treated by public officials and/or persons acting in official capacity.  There was no reliable evidence showing that the Vietnamese government knew, or ought to have known the claimed threats and ill-treatments against the Applicant and failed to respond to the best of its de facto capabilities.  The Board did not accept that the Applicant would be in danger of being subjected to torture if deported from Hong Kong.

32.  The Board found no reliable evidence that the Applicant had suffered ill-treatment, physically or mentally, of certain severity or gravity.  After considering the Applicant’s evidence and the COI, the Board did not foresee any circumstances and did not accept the Applicant’s assertion that he would be in danger of being subjected to arbitrary deprivation of life in violation of BOR 2 or ill-treatment in violation of BOR 3, if deported from Hong Kong.  

33.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection.  These were 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 for the Claim.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

34.  In the premise and having considered the Board’s 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