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

HCAL 306/2021

[2025] HKCFI 6211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 306 of 2021

   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 Applicant being absent in open court.

1.   The Form 86 be amended on the Court’s own motion; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 9 March 2021 for leave to apply for judicial review (the “leave application”), naming himself as the Applicant and the Putative Respondent; and stating the decision of the legal aid officer of the Legal Aid Department as the decision in respect of which relief is sought.  Such pleading is clearly problematic.  In his supporting affirmation, he said he disagreed with the decision of the Torture Claims Appeal Board/Non-refoulement Petitions Office (the “Board”), that he was unable to repay a debt and that his life would be at risk returning to his home country. 

2.  Inquiries with the Immigration Department revealed that the Applicant is a non‑refoulement claimant.  It became clear to the Court that in the non-refoulement context the Applicant’s intention is to seek judicial review of the Board’s decision dated 25 January 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 2 June 2020 (the “Notice”), refusing his application for non‑refoulement protection.  Hence, on its own initiative, the Court amended his Form 86 to give effect to his intention.

3.  The Applicant had requested an oral hearing.  A hearing on 12 November 2025 was scheduled to hear his application.  The Applicant’s address as stated in his Form 86 is at Sai Kung.  He had never informed the court of any change of address.  As a number of years has lapsed since his filing of the Form 86, out of caution, the Court obtained his latest reported address at Yau Tsim Mong from the Immigration Department.  A notice of hearing was sent to the Applicant by post to his address in Sai Kung and in Yau Tsim Mong.  The notices have not been returned through the post.  There is nothing to suggest that he had not received the notice of hearing.  However, he did not appear at the hearing.  A court staff attempted to contact him on his telephone number provided by the Immigration Department.  The person who answered the call said he was not the Applicant.  On further enquiries, the Immigration Department confirmed that the address and telephone it had provided were the latest information it had.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that it had tried its best endeavour to bring the hearing to his notice.     Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

The Applicant’s claim

4.  The Applicant is a Vietnamese national.  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. 

5.  The Applicant said he had borrowed 50,190 million Vietnamese Dong (“VND”) from the moneylender at a monthly interest of VND 14 million for a term of five years to start a pig farming business.  He was paid interest for six months.  Then, his business collapsed when government exterminated all the pigs in his farm due to a pandemic in 2017.  Thereafter, he was unable to pay the interest.  The moneylender gave him a month to pay and threatened to beat him up if he could not.  He made a report to the police station, but was told to resolve the dispute by himself.  That evening, red paint were splashed and dirty words were written on the walls of his house.  He reported the incident to the police station again, but the police still refused to accept his case.  Then, he fled to Phong Binh Thuy where he lived and worked for two years.

6.  One morning in 2019, the Applicant was met by six people wearing mask.  They said they were sent by the moneylender to collect debt from him.  They pushed him into an alley and cut off his index finger.  As he was running away, he was hit unconscious by a motor cycle (the “traffic accident”).  He was taken to the hospital by a passerby in the presence of his assailants.  He was hospitalized for four months.  After his discharge from hospital, he returned to his home in Do San. One day, while he was having coffee at a café, two people handed him a note saying that more fingers would be severed if he did not repay.  Out of fear, he fled to Mainland China on 15 December 2019.  From there, he sneaked into Hong Kong.

The Board’s finding

7.  The Applicant testified at the hearing.  The Board found his evidence troubling in many respects.  First, his recollection of the amount of the loan was faulty in that it should be 5,190 million Vietnamese Dong (“VND”) instead of VND 50,190 million.  Hence, the loan amount, its part payment and interest rate were all tainted with this error.  Second, he could not explain why he chose to borrow funds to start a pig farm but his previous experience was in shrimp farming.  Third, he said in his non‑refoulement claim form that he had made two reports against the moneylender once before and again after the paint splashing incident; but he could only recount one reporting only during the oral hearing.  He admitted he erred at the oral hearing, but was unable to explain why he erred.  The Board considered the paint splashing incident must have been traumatic and it was implausible for the Applicant to have failed to recall whether he made the police report once or twice or whether before or after the incident.   It found his “forgetfulness” undermined his claim that he gave up seeking police protection after two experiences of being turned away as he did not actually remember those experiences properly. 

8.  Fourth and more importantly, he claimed he was injured in a serious road traffic incident while running away from the moneylender’s men who had just severed his index finger.  He fell unconscious and was taken to the hospital by a passerby in the presence of the moneylender’s men.  He said his medical expenses amounted to VND 120 million and the moneylender’s men sent him VND 20 million via bank transfer as compensation while the rest was shared between him and the company which owned the truck (motor cycle?).  He said the moneylender contributed because he did not wish the matter to escalate.  The Board did not believe his evidence that the Vietnamese police could have been completely excluded from investigating such a serious traffic accident resulting in serious personal injury and admission to a public hospital for four months.  It also found it inexplicable that the Applicant decided not to take that valuable opportunity to seek help from the police when his life was visibly at stake and to collude with the moneylender’s men to exclude the police from intervening.  It found it contradicting for the Applicant to allege that his moneylender wanted to kill him but then paid his medical expenses and refrained from hurting him when he was convalescing from the traffic accident. It also found the Applicant’s acceptance of the sum of VND 20 million from the moneylender and his choice not to seek police protection meant that he did not fear his moneylender as much as he claimed.       

9.  The Board rejected the Applicant’s claim that he faced serious risk of harm from the moneylender.  It did not accept that the moneylender was in a position to cause any public official or any person able to wield the authority of the state of Vietnam to be interested or involved in any attack or illegal ill-treatment of the Applicant.  It found no evidence that the state and/or other authorities in Vietnam have perpetrated or acquiesced to any attack and ill-treatment on the Applicant.  It found no evidence that the Applicant had suffered physical and/or mental suffering of the requisite severity or would face any real risk of serious harm in the future.  On the basis of authoritative and credible country of origin information, it was satisfied that state protection would be available to the Applicant and there was no evidence that the Vietnamese police or the state is unable or unwilling to protect him and that avenues of complaint are open to the Applicant.  It also found no evidence that the persecution which the Applicant feared was be caused by one or more of the reasons protected under protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol. Applying the law applicable to non-refoulement protection, the Board found the Applicant was not entitled to protection under any of the four applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

Grounds for judicial review

10.  The Applicant had not advanced any grounds of judicial review in his Form 86. In his supporting affirmation, he repeated his fears and risk of harm returning to Vietnam.   Thus, the essence of his complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk of harm if returned to Vietnam.  That is not permissible.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Overall scrutiny

11.  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 the country of origin information.  It found the Applicant incredible and rejected his claim that he faced serious risk of harm from the moneylender.  It also made various other necessary finding of facts as set out in Paragraphs 8 and 9.  On the basis of those finding of fact, it found the Applicant had failed to establish the factual basis to support his claim for non-refoulement 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, 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

12.  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

[1]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000306_2021_files/the_Board's_Decision.pdf