NGUYEN HUU PHUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3078/2019

[2025] HKCFI 1926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3078 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 28 April 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Vietnam. According to the applicant, he claimed to have arrived in Hong Kong illegally and surrendered to the Immigration Department on 2 July 2015. In due course, he lodged a non-refoulement claim.

5.  The applicant’s claim was based on his fear of being harmed or killed by his creditor because of his inability to repay a debt.

6.  According to the applicant, there were 2 incidents in 2014 in which the applicant was injured by the creditor and his men for the failure to repay his debt. There was a further third incident in 2015 where he was threatened but was unharmed. Details of his claim are set out in Chinese at paragraph 7 of the Notice of Decision dated 4 December 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the absence or low intensity and frequency of the ill-treatment encountered was indicative of a small future risk of harm and the applicant’s behaviours were inconsistent with a person who was genuinely in fear of their safety [12-14]; state protection was available [15-18]; and internal relocation alternatives were available and reasonable [19-22].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 15 May 2019, the Board conducted an oral hearing for his appeal, during which the applicant was asked questions by the Board [5].

10.  Having considered the evidence, the Board found that much of the applicant’s evidence relates to facts which are hearsay and speculation and that, while he was persuaded that the applicant did borrow a large sum of money from the creditor, the applicant did not suffer serious injury as a result of the first 2 incidents [52-55]. Further, the Board was not persuaded that there was a real risk that the applicant would be liable to suffer serious harm at the hands of the creditor [58]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 18 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not put forth any ground in Form 86.

12.  In his affirmation in support of his application, the applicant exhibited the Board’s Decision and deposed that he would need protection from his creditor as he would be harmed but again did not put forth any valid reason to challenge the Board’s Decision.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

16.  The applicant has raised no valid ground to challenge the Board’s findings.

17.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.