TRAN THI DIENG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 895/2020

[2025] HKCFI 5183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 895 of 2020

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

(1)  Form 86 be amended, naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and adding the Director of Immigration as the Putative Interested Party.

(2)  No extension of time be granted for the making of the application for leave to apply for judicial review, and the application herein be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 13 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (“the Board”)’s decision dated 15 November 2019 (“the Board’s Decision”), confirming the Director of Immigration (“the Director”)’s decision dated 23 June 2017 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds.

2.  The Applicant’s personal background, his case, and his claim that his life would be in danger if returned to Vietnam due to threats from his creditor, together with the relevant immigration and procedural history, were set out in the Board’s Decision. It is not necessary to repeat them here. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall adopt the abbreviations and descriptions used by the Board below.

Discussion

3.  The Applicant is absent from the oral hearing. I proceed to consider the merits of the Leave Application based on the materials available before me (see Re Abdus Salam [2019] HKCA 1091).

4.  The Applicant has made the Leave Application out of time. Pursuant to Order 53, rule 4 of the Rules of the High Court:

“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”

5.  For the reasons set out below, I do not consider that there is any good reason to extend the time permitted for the application for leave to pursue judicial review.

6.  In determining this matter, the relevant factors are as follows: (i) the length of the delay; (ii) the explanation provided for the delay; (iii) the merits of the substantive application; (iv) any resulting prejudice; and (v) whether the application raises questions of general public importance (see AW v Director of Immigration [2016] 2 HKC 393 (CA) at §§23-36; Re Thomas Lai [2014] 6 HKC 1 at §§43‑45 (cited in AW, supra); H v Director of Immigration (2020) 23 HKCFAR 248 at §§17‑22, 36-44 (citing inter alia AW and Thomas Lai, supra); Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19, upheld in [2022] HKCA 1321).

7.  To begin with, the delay in question spans several months, and the Applicant has neither provided any explanation for it nor made any request for an extension.

8.  Secondly, and most importantly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). An oral hearing was conducted during which the Applicant had all his rights explained to him. He agreed to testify and answer questions. Subject to his oral evidence, the Applicant adopted the contents of the Notice of Appeal / Petition, his Non-refoulement Claim Form (NCF), and the records of interview as evidence in support of his case. Having reviewed all of these materials, the Board made findings of fact and concluded that the Applicant had failed to establish a case for non-refoulement, whether under the principles of torture, BOR3, BOR2, or persecution. Accordingly, the Board dismissed the appeal and confirmed the Director’s Decision:

(1)  The Board was of the view that, in the present case, the Applicant had only made “bare assertions” and failed to provide any objective evidence in support of those claims. The matter ultimately turned on the internal credibility of his account and its plausibility in light of the known COI information. In particular, there were material facts and pieces of information provided by the Applicant that the Board found “implausible” or “unreliable”, which adversely affected both his credibility and the overall reliability of his evidence. The number and nature of inconsistency and implausibility in his account were “serious” and significantly undermined its reliability.

(2)  The Board was not convinced, on the totality of the evidence, that the Applicant came to Hong Kong because of the alleged threat of harm from the Creditor. It was not satisfied that he had suffered any physical or mental pain and suffering as claimed. Nor was it persuaded that, after more than three years, the Creditor, if he ever did, was still pursuing the Appellant across the country with intent to harm him. The Board was not convinced that the Applicant would face any threat of harm if returned. He had, in fact, expressed a desire to return to his country, and the alleged threat no longer appeared to be a live issue. The central premise of his account did not withstand scrutiny. The Board found his evidence to be “dishonest” and “unreliable”, and concluded that he was “not a genuine claimant”.

(3)  The Board held that, in the absence of a set of reasonably plausible facts, there was no factual basis upon which it could accept that the Applicant was at risk of harm in his country. His claim failed due to the lack of a credible and plausible case establishing a real risk of torture. For the same reasons, his claims under each of the other grounds of CIDTP, BOR2 and persecution also failed.

(4)  The Board assessed that there was no evidence of physical or mental pain or suffering that satisfied the element of “severe pain and physical or mental suffering” required under the claim of Torture Risk. Furthermore, the evidence did not establish substantial grounds demonstrating a foreseeable and real risk of harm.

(5)  There was far from sufficient evidence to establish the issue of “official acquiescence”. Nor was there any evidence of “passive acquiescence”. There was no evidence that the Applicant had ever been arrested, detained or imprisoned in Vietnam. The evidence did not demonstrate any harm or threat of harm inflicted by a State agent acting in the capacity of the State, nor was there any harm or threat of harm carried out or issued under the authority of the State.

(6)  The Board referred to and relied upon the COI information, which indicated that although corruption and inefficiencies were widespread, the government had undertaken reforms efforts. There was no report or evidence indicating that the authorities would fail to discharge their duties or tolerate any unlawful and abusive conduct. Moreover, the Applicant did not claim the existence of a consistent pattern of gross, flagrant, or mass violations of human rights.

(7)  The Board therefore rejected the Applicant’s appeal regarding Torture Risk.

(8)  For similar reasons, the Applicant had not suffered any severe injury or serious harm that would fall within the criteria of CIDTP. In any event, the Board found no substantial grounds to believe that the Applicant would face a future “genuine and substantial risk” of being subjected to serious harm meeting the “minimum level of severity”. The appeal under BOR3 Risk therefore failed.

(9)  The Applicant alleged that the Creditor would harm him in Vietnam. However, there was no evidence that the Applicant was subjected to any risk of death penalty or genocide in Vietnam. Therefore, the Applicant faced no BOR 2 risk if refouled.

(10)  The Board concluded that the Creditor and his associates did not fall within the meaning of “populace” under refugee law. It also found that there was a reasonable availability of State protection against such harm. The Applicant had not suffered any severe injury or serious harm that would bring him within the criteria of CIDTP. Furthermore, the Board did not find substantial grounds to believe that he would face a future risk of serious harm.

(11)  The Board also found that the Applicant had multiple options for relocation within Vietnam. He had, in fact, relocated to two different places for several months without encountering any problems. The Board did not accept that the Creditor remained interested in locating him throughout the country. It found no substantial risk or credible basis for fear of harm. The Board was also of the view that, as a 29‑year-old able-bodied individual, the Applicant could safely reside in his country without experiencing undue hardship.

9.  It was primarily for the Board to assess evidence, COI materials, risk of harm, availability of State protection, and the feasibility of internal relocation as discussed above. The Applicant has not raised any complaint of error of law, procedural unfairness, or irrationality in the Board’s Decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142), nor am I satisfied that any such issues exist, bearing in mind the enhanced standard required by law to uphold the high standard of fairness in decision-making (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). In the absence of any public law errors, the Court’s role in a judicial review is not to provide a further avenue of appeal (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).

10.  On the facts of this case, there is no reasonably arguable ground for judicial review with any realistic prospect of success. Accordingly, there is no justification for the Court to grant leave to proceed with judicial review.

11.  On the issue of prejudice, I am satisfied that none arises from my refusal to extend time for the Applicant to pursue an unmeritorious judicial review claim. On the contrary, it is essential to maintain a disciplined approach in time extension applications in order to prevent unnecessary disruption to public administration and to avoid the inevitable delay that would result from permitting baseless proceedings to continue out of time.

12.  Finally, in considering this matter, I do not observe, nor do I accept, that any question of significant public importance has been raised by the Applicant.

Conclusion

13.  For these reasons, I refuse the Leave Application and make the orders set out above.

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