NGUYEN VAN TOAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2822/2019

[2025] HKCFI 1724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2822 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;

The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 25 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 8 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 11 February 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 10 April 2025. A notice of hearing with a reminder[1] of the consequence of absence dated 17 March 2025 was sent to the applicant’s latest reported by ordinary post. The applicant did not turn up at the hearing. Several telephone calls 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.

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

Background

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

5.  The applicant is a national of Vietnam. He surrendered to the Immigration Department on 21 March 2016 and raised a non-refoulement claim on the same day. He claimed that he entered Hong Kong without permission on 19 March 2016. 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 harmed or killed by his creditor if he were to be refouled to Vietnam.

6.  According to the applicant, in June 2014 he borrowed 1.5 billion VND from his creditor. When the debt became due later that year, he was only able to repay part of it. The creditor threatened him, the applicant therefore fled to his friend’s house to hide from the creditor for four months. After the applicant returned to his home, the creditor sent three men to demand for immediate repayment; and threatened that if he did not repay the loan, they would chop off the applicant’s legs.

7.  Subsequently on 10 March 2015, those three men went to his home and assaulted him for 10 minutes. The applicant was badly beaten. The applicant was hospitalized for 10 months for the injuries he sustained from the beating. The applicant reported the incident to the police but it was in vain due to the close relationship between the creditor and the police. He later fled to Quang Ninh to hide from his creditor, but the creditor managed to locate him and sent three triad members to chop him with knives and swords. He managed to escape, and subsequently fled to Mong Cai, where he lived until he fled from Vietnam for China.

8.  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.

9.  The Board decided that the appeal could be determined on paper without a hearing. The Board found that the attacks on the applicant were not inflicted by or at the instigation of or with the consent or acquiescence of a public office or other persons acting in an official capacity. It further found that the intensity of the past ill-treatment by the creditor was low, and that there was no evidence of government or person acting in an official capacity involved in the subject loan matter. It was purely a private matter. Having considered the relevant Country of Origin Information (“COI”), the Board found the applicant’s claimed risks would be attenuated by the availability of state protection and the reasonably viability of internal relocation. The Board found that the applicant failed on all his grounds of the claim, and dismissed the applicant’s appeal. The Director’s Decision was confirmed.

Legal principles applicable to judicial review

10.  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.

Discussion and conclusion

11.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation prepared in Chinese, the applicant stated that if he were to be refouled, the triad members of his debtor would kill him.

12.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.  The Board’s Decision was arrived at after having carefully examined the applicant’s evidence. The Board’s findings of the low intensity of harm, the availability of state protection; and the reasonably viability of internal relocation are findings of fact, which the court in a judicial review will not interfere with.

14.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

15.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

16.  The Leave Application be dismissed.

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

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