NGUYEN QUANG THUC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 571/2022

[2026] HKCFI 2120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 571 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 oral submissions by 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 5 July 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 15 June 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 November 2021 (the “Notice”), refusing his application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is a Vietnamese national, now aged 33. 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 he will be harmed or killed by a moneylender for being unable to repay the loan he had borrowed from the moneylender, if returned to Vietnam.

3.  The Applicant claimed that in August 2018 he had borrowed 1,000 million Vietnamese Dongs (“Dongs”) from a moneylender with triad background for his livestock farming business for a term of one year at a monthly interest of 10 million Dongs. He had an option to extend the term for another year, provided he paid the monthly interest. He was able to pay his monthly interest on time from August 2018 to November 2019. Since November 2019, he was unable to pay interest due to the outbreak of swine flu and all his pigs died. He switched to raising chickens. He was still unable to pay. The moneylender gave him two extensions for a total term of six months. In May 2020, he was still unable to pay. The moneylender and his men assaulted him and threatened to kill him. In the same month, the moneylender’s men threw a petrol bomb at the Applicant’s house damaging some furniture and injuring both the Applicant’s hands. In July 2020, the Applicant went into hiding after he received a call from the moneylender. He hid in his wife’s maiden home. Finally, he left Vietnam in February 2021. He never came across the moneylender between May 2020 and February 2021.

4.  The Applicant claimed that while he was out of Vietnam, his wife told him that the moneylender kept looking for him and chasing for repayment of the loan; but he never threatened her or repeated his threat to kill the Applicant.

The Board’s finding

5.  The Board assessed the Applicant’s claim on the basis of the factual case as he asserted. It also made some secondary finding of facts based on his factual case. It found on the fact that the injuries suffered by the Applicant as result of the assault and the bombing were not serious and that the ill-treatment he received did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance.

6.  While accepting that it was the Applicant’s belief that the police would not handle his complaint against the moneylender seriously and that corruption and inefficiency is common at all levels of the police force, the Board also noted from the country of origin information (“COI”) that the Vietnamese government had recently undergone reforms in order to combat corruption in the police and to improve their efficiency. On balance, it found the Applicant had failed to establish that there were substantial grounds for believing that he would be subjected to torture, if refouled. For the same reason, particularly that the injuries he suffered did not attain the minimum level of severity, it found that the Applicant would not be subjected to the kind of ill-treatment contemplated in BOR 3 Risk ground. For the same reason and the additional reason that his fear of ill-treatment arose from a personal monetary dispute and not on account of any of the reasons mentioned in the 1951 Convention relating to the status of refugees and its 1971 Protocol, the Board found his claim under Persecution Risk ground failed. It also found there was nothing in his case that supports a claim under BOR 2 Risk ground.

7.  The Board also found on the basis of the COI that given his background and work experience, the Applicant could relocate to other provinces or cities such as Ho Chi Minh, Da Nang or Mong Cai to avoid the risk of harm from the moneylender.

8.  For all these reasons, the Board found the Applicant had failed to establish his entitlement to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”). Hence, it dismissed his appeal.

Grounds for judicial review

9.  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 supporting affirmation:

10.  First, he submitted that if returned to Vietnam, his life will be seriously threatened. He will be tortured, beaten or even killed because the gangsters 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 finding of fact that he had failed to discharge the burden of proving his risks under any of the four applicable grounds under the USM, which is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision.

11.  Second, he disagreed with the Director’s suggestion that he could relocate to live in other locations to avoid the gangsters because of his health, personality and that the disadvantage he would suffer in the labour market. The Board did not make any such finding. On the contrary, the Board held in paragraph 77 of its Decision that in view of his educational background, youthfulness and working experience, he could work as a bulldozer operator, farmer, and operate his business in livestock farming in various cities in Vietnam. This ground is also a challenge against the Board’s finding of fact, which is impermissible.

12.  Lastly, he claimed 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 gangsters to find him out and harm him. This is a challenged against the Board’s finding of fact in paragraph 75 of its Decision that there is no evidence that his moneylender could have the resources to locate the Applicant anywhere in Vietnam. For reasons as explained above, save for errors of law, procedural unfairness or irrationality in the Decision.

13.  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 or irrationality in the Decision sought to be reviewed.

Overall scrutiny

14.  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. It assessed his claim on the basis of the factual case as he asserted and some necessary further finding of facts based on his factual case. Even on that basis, the Board found he had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. These are mixed findings 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

15.  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