DOAN THANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2739/2019

[2025] HKCFI 2146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2739 of 2019

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. Doan Thanh (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 2 September 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 22 August 2017 (“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 31 July 1983 in Tinh Quang Ninh, Vietnam. He received 12 years of education and had worked as a truck driver from 2001 to 2011.

3.  From 2011 to 2014, the Applicant operated his own transportation business (“Business”). He borrowed Vietnamese Dong (“VND”) 300 million (“1^st Loan”) from a moneylender (“Lender”) in Vietnam to start the Business. He duly repaid the 1^st Loan to the Lender.

4.  In 2013, he borrowed another VND 700 million (“2^nd Loan”) from the Lender to expand the Business. The 1^st Loan and the 2^nd Loan together are referred as “Loans” hereinbelow.

5.  The Applicant was required to repay VND 1,500 each day for each VND 1 million of the 2^nd Loan as interest. He duly paid the interest on the 2^nd Loan to the Lender until July 2014 when the Business started to fail. One of his trucks was involved in an accident and the goods under transportation became total loss. He had to pay VND 120 million to the owners of the goods as compensation. The Applicant started to sell his trucks to make part payments to the Lender. By early 2015, he was unable to make any further payments to the Lender.

6.  In June/July 2015, the Lender together with about 6 underlings came to the Applicant’s house with wooden sticks and iron rods to collect outstanding of the 2^nd Loan. The Applicant was unable to repay. One of the men slapped the Applicant’s face 2 to 3 times. The Lender demanded the Applicant to repay the outstanding in one week and threatened to beat up and kill the Applicant if he still failed to repay.

7.  Knowing that he was unable to repay the Lender, the Applicant fled to his friend’s place in Mong Cai. He stayed there for a few months and met some friends who advised him to sneak into Mainland China.

8.  The Applicant first departed Vietnam for Mainland China on 13 December 2015. From the Mainland, he sneaked into Hong Kong. He was arrested by the Hong Kong police on 3 March 2016 and repatriated back to Vietnam in May 2016.

9.  After the Applicant returned to Vietnam, he stayed at his friend’s place in Hanoi until November 2016 when he left Vietnam for Mainland China again. On 1 December 2016, the Applicant sneaked from Mainland China into Hong Kong again.

10.  He was arrested by the Hong Kong police on 3 December 2016. He then raised the Claim on 4 January 2017.

11.  The Applicant claimed that the Lender would harm or even kill him upon his return to Vietnam because he was unable to repay the 2^nd Loan.

12.  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”).

13.  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.

14.  On 18 September 2019, 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 as the proposed respondent and the Director as the interested party.

Legal principles applicable to judicial review

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

16.  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.”

17.  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

18.  The Applicant did not put forward any grounds for his intended judicial review in the Form 86 or the Supporting Affirmation. He only exhibited the Board’s Decision without other supporting documents to the Supporting Affirmation.

19.  In §§44(7)-(24) and 56 of the Board’s Decision, the Board discussed the Applicant’s evidence given at the hearing before the Board in some details. The Board found substantial contradiction and inconsistencies between the Applicant’s evidence provided to the Board and that provided to the Director. The Board did not accept that the Applicant had borrowed the Loans or that he had been threatened. Thus, the Board rejected the Appeal. (§§58-60 of the Board’s Decision)

20.  For reasons set out in §§62-72 of the Board’s Decision, the Board was of the further view that even accepting the Applicant’s evidence given to the Director, the Appeal still failed.

21.  After considering the relevant country of origin information (“COI”), the Board found that reasonable state protection would be available to the Applicant if he were returned to Vietnam and that internal relocation to other cities in Vietnam such as Ho Chi Minh City, was viable for the Applicant. (§§77-97 of the Board’s Decision)

22.  At the Court Hearing, the Applicant only stated that he had married his wife in Hong Kong. They had two children and his wife was pregnant with their third child. He said that his wife and children were also claimants for non-refoulement protection and he wanted to stay in Hong Kong to take care of them. However, the Applicant was unable to identify any errors of law, procedural unfairness or irrationality in the Board’s Decision. The non-refoulement claims of the Applicant’s wife and children will no doubt be processed by the Director under the USM but this is no ground for the Applicant’s application for leave for judicial review of the Board’s Decision.

23.  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.

24.  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.

25.  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.

26.  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 borrowed the Loans or had been ill-treated or threatened as alleged.

27.  The Board further found that even the Applicant’s own evidence did not show that the Lender intended to inflict serious harm on him. The alleged ill-treatment did not attain a minimum level of severity and the Vietnamese government was not involved. The Board assessed the risk of the Applicant being harmed or killed by the Lender or his underlings upon the Applicant’s return to Vietnam to be low. (§§62-72 of the Board’s Decision)

28.  In §§100-105, 110-111, 113-114 and 119-121 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM.

29.  The Board found that the alleged ill-treatment did not amount to “torture” referred to in section 37U of the Ordinance and did not attain a minimum level of severity to violate the BOR 3. The Applicant also failed to establish that he would be arbitrarily deprived of his life in violation of BOR 2 upon his return to Vietnam or that he had a well-founded fear of persecution for any of the reasons referred to in the Refugees Convention. The Board also found that reasonably sufficient state protection would be available to the Applicant in Vietnam and internal relocation viable for him.

30.  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

31.  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