LE THE HOAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 786/2022

[2026] HKCFI 3366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 786 of 2022

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 the oral submissions of the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 17 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 21 July 2022 (the “Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”) refusing his application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is a Vietnamese national, now aged 30. He had received 12 years’ education. He had no working experience except for a few months when he ran his retail business selling construction materials in 2019. He surrendered to the Immigration Department on 30 March 2020, claiming to have entered into Hong Kong from Mainland China on 8 March 2020. On 27 April and 4 May 2020, he made a claim for non-refoulement protection by written signification. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, he claims, if returned to Vietnam, he will be harmed or killed by a moneylender for being unable to repay the loan he had borrowed from the moneylender.

3.  The Applicant’s case as advanced by him in his non-refoulement claim form (“NCF”) and record of his screening interview is as follows. In August 2019, he borrowed 700 million Vietnamese Dongs (“Dongs”) with no fixed term from the moneylender at a monthly interest of 7 million Dongs for the purpose of setting up his retail business selling construction materials. The moneylender is a notorious loan shark with triad background. The Applicant spent the loan wholly on setting up his business. He did not employ any staff. He was able to pay monthly interest for three months. Then, on 22 November 2019, a fire broke out in his shop because of an electrical short circuit. Almost everything was burnt. He had not purchased any insurance for his shop. He lost his entire investment and cannot pay the moneylender. He closed down his shop.

4.  On 17 December 2019, the moneylender and six of his underlings went to the Applicant’s home to demand repayment of the principal and interest. The Applicant could not pay. They assaulted him with bare hands and gave him a month to pay, but threatened to kill him if he failed to pay next time. The Applicant treated his injuries at home. He reported the incident to the police, but did not hear anything from them.

5.  The Applicant could not raise funds to pay the moneylender. He hid himself in a hostel in Hai Phong City. One day in January 2020, he saw the underlings approaching his room in the hostel. He believed someone had informed them of his whereabouts. He fled to Ho Chi Minh City without encountering the underlings.

6.  However, in late February 2020, the same six underlings went to his hostel room in Ho Chi Minh City, dragged him out of the room and assaulted him with bare hands in the public place of the hostel for an hour. He managed to escape. He had bleeding at his left eye and mouth and had bruises all over his body. He was hospitalised for three days. He did not report the attack to the police because of his past experience.

7.  He did not consider he could relocate to other places in Vietnam because he had no money and did not want to spend the rest of his life hiding. On his friend’s advice, he fled to Mainland China and then sneaked into Hong Kong.

The Board’s finding

8.  The Applicant testified before the Board. The Board found multiple and significant contradictions between his testimony and his evidence in his NCF. First, the terms of the loan agreement as given by him in his testimony are different from those given by him in his NCF in the following significant respects. He had to pay 10 million Dongs as interest and another 10 million Dongs as partial repayment of the principal every month; and the entire principal must be repaid within 70 months. The terms of the loan agreement as stated in his NCF are simply a loan of 700 million Dongs at a monthly interest of 7 million Dongs with no fixed term. Second, in respect of the first debt collection event, he said he did not encounter the moneylender and his underlings as he was in Hai Phong City. Third, in respect of the third debt collection event, the Applicant said the underlings went to his place in Ho Chi Minh City armed with two iron sticks and one glass bottle, they met him and assaulted him causing injuries in his head, mouth and nose. He did not suffer any bruises or bleeding in the left eye as recounted in his NCF. In view of the significant contradictions, the Board did not accept the Applicant’s account that he had a loan dispute with the moneylender and had been assaulted by him and his underlings. It found there is no reason that he could not return to Vietnam.

9.  The Board also took a step further and assessed his claim on the basis of the case as he asserted, accepting that there were the loan, the non-payment and the three debt collection activities. Nevertheless, it found the Applicant had not suffered ill‑treatment which attained a minimum level of severity, indicating only a low future risk of harm on his return to Vietnam. It found the injuries he suffered fell short of the requisite level as would entitle him to protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”) and that the moneylender had no intention to seriously harm or kill him.

10.  It found the dispute between the Applicant and the moneylender is a private monetary dispute in which no public officials or persons able to wield the authority of the government and/or state had any connection with the claim or acquiesced in the ill‑treatment of the Applicant. It found the ill-treatment inflicted on the Applicant did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance and did not arise on account of any of the reasons enumerated in Article 1A(2) of the 1951 Convention relating to the status of refugees and its 1967 Protocol.

11.  On the basis of independent and credible country of origin information (“COI”), the Board found state protection was available and internal relocation feasible to mitigate or avoid the risk of harm. In view of his youthfulness, education and working experience, the Board found it would not be unreasonable and unduly harsh for him to relocate to other areas in Vietnam such as Da Nang and Can Tho to avoid the risk of harm.    

12.  Applying the law applicable to non-refoulement protection to the Applicant’s case as he asserted and the Board’s further finding of facts, the Board found the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

13.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

14.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements. However, he had advanced the following three grounds in his Form 86:

15.  First, he submits that if returned to Vietnam, his life will be seriously threatened. He will be tortured, beaten or even killed because the moneylender and his underlings in Vietnam are cruel and violent. They disregard the law and are willing to kill to satisfy their anger and ferocity. This is a direct challenge of the Board’s primary finding of fact that he had failed to prove in the first place that his life would be at risk, if returned to Vietnam; and in the alternative that state protection and internal relocation are available to mitigate or avoid the risk of harm. It is not open to the court in an application for judicial review to intervene in such finding of fact by the Board, save for errors of law, procedural unfairness and irrationality in the Decision.

16.  Second, the Applicant disagrees with the Director’s suggestion that he could relocate to live in other locations to avoid the moneylender. For his benefit, the Court assumes that this complaint is directed at the Board. He submits internal relocation is not feasible because he could not find employment in the new location by reason of his health, personality, the fact that he is near his retirement age, and the disadvantage he would suffer in the labour market. The Applicant is just 30 years of age. He is nowhere near his retirement age. His youthfulness is a factor which makes it all the easier and more possible for him to relocate.

17.  The Board had considered the issue of internal relocation in depth in paragraphs 98 to 107 of its Decision and referred the Applicant to country information of a number of cities to where he may safely relocate, including Da Nang and Can Tho. The Board found, being an educated, able-bodied adult with many years of working experience, it would not be unreasonable or unduly harsh for him to relocate. The Board was obviously mistaken about his working experience for it is his case that he had never been employed since 2013 when he was 18 years old.  On his own account, he never worked until 2019 when he started his own retail business. Despite the error, it remains true that his youthfulness, education and his being an able-bodied person are his assets which will find him employment. The Board’s mistake about his working experience is de minimis.

18.  Furthermore, the issue of his health, personality and his competitiveness in the labour market had not been raised by the Applicant in his testimony and he had not submitted any such evidence. It is not open to the Applicant to advance these new issues which did not form part of his claim.

19.  Lastly, the Applicant claims that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is possible for the moneylender and his underlings to find him out and harm him. First, like the second ground, this is a direct challenge of the Board’s primary finding of fact that he had failed to prove in the first place that his life would be at risk, if returned to Vietnam. Second, this is just an assertion based on the Applicant’s own speculation without any supporting evidence. Third, the Board had considered this very issue of risk of harm from the moneylender and his underlings when it considered availability of state protection in paragraphs 101 and 102 of the Decision. It found the risk is localised and could be avoided by internal relocation. This ground is also a direct challenge of the finding of fact of the Board, which is impermissible.

20.  There is no substance in any of the grounds advanced. In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

21.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully and tested it against common sense, inherent probability and COI. Because of the multiple and significant contradictions in his evidence, the Board found him incredible. It did not accept the Applicant’s account that he had a loan dispute with the moneylender and had been assaulted by him and his underlings. It found there is no reason that he could not return to Vietnam. Primarily, it found the Applicant had failed to discharge his burden of proving the factual basis of his claim to protection. This is a mixed finding of fact and of the law.

22.  The Board went on and considered the Applicant’s claim on the basis of the case as he asserted. It made some further finding of facts based on the evidence in his account and the COI. Then, applying the law applicable to non-refoulement protection to the Applicant’s case and the further finding of fact, it found the Applicant had failed to establish the factual basis to support his claim to protection under any of the applicable grounds under the USM. These findings as well as its primary finding in the preceding paragraph are mixed finding of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

23.  For the above reasons, the Applicant’s leave application is refused.

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