HOANG MANH TRUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 639/2022

[2026] HKCFI 4567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 639 of 2022

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 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 Applicant’s application by Form 86 filed on 21 July 2022 seeking leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 12 May 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 February 2021 (the “Notice”) refusing his application for non-refoulement protection.

2.  The Applicant did not request an oral hearing. 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.

3.  The Applicant is a Vietnamese national, now aged 41. He was arrested by the police on 10 October 2020. He claimed to have entered Hong Kong illegally from Mainland China the day before. He raised a non-refoulement claim by way of written signification. 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, if returned to Vietnam, he will be harmed or killed by a moneylender for being unable to repay the loan he borrowed from the moneylender. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of the Board’s Decision.

The Applicant’s case

4.  The Applicant claimed he had borrowed 500 million Vietnamese Dongs at a monthly interest of 15 million Dongs from the moneylender for expanding his pig farming business in Commune Nghia Minh, Nghia Dan District, Nghe An, Vietnam (“Village 9”). In early 2019, his pigs were killed by the African Swine Fever, but the government delayed paying him compensation. He was able to pay interest to the moneylender in February and March, but became unable to pay in April. The moneylender and his men went to his home to demand interest payment. They assaulted him, vandalised his home and threatened him with harm. After they left, he made a report to the police. The police came to his house to make investigations but left upon learning the identity of moneylender.

5.  The moneylender and his men went to his home again in May 2019 to demand payment. One of them hit him with a knife causing a cut at the back of his head and slashed his right forearm. The Applicant fought back and managed to flee with his wife from their house. He went to a clinic for treatment and then fled to Ho Chi Minh City. He worked and lived there for a year. During that period, he learned from his wife that the moneylender continued visiting their house looking for him. Upon learning from his friend that the moneylender would be sending his men to look for him in Ho Chi Minh City, he moved to Mong Cai. Then he went to Mainland China and sneaked into Hong Kong.

The finding of the Board

6.  The Board found from authoritative and credible country of origin information (“COI”) that while African Swine Fever was prevalent among pigs in Vietnam since early 2019, but none of the reported cases that took place in February 2019 were anywhere near Nghia Dan District where the Applicant’s farm was situated. The eleven cases of outbreak that month took place in North Vietnam.

7.  The Board found the Applicant’s account vague, exaggerating, internally inconsistent with his own evidence and with the COI. Despite claiming he had operated the farm for some six years before fleeing Village 9, he could give no details of his business, the detail of the cattle he raised or the crops he grew, the investment cost and revenue. He could not even state with any precision how much he had to pay for each of the piglets he purchased or how much he was expected to receive as compensation. The Board was not convinced that he had operated the farming business.

8.  On the basis of credible COI, the Board was satisfied that the local police is professionally trained and generally provides adequate state protection to citizens. As his wife and children continued to stay in Village 9 and were safe, the Board did not accept the Applicant will face a genuine and substantial risk of being subjected to death under BOR 2 or ill-treatment under BOR 3. On the facts, it found the Applicant had failed to demonstrate substantial grounds for believing that he would be in danger of being subject to torture within the meaning of section 37U(1) of the Immigration Ordinance or to persecution on account of race, religion, nationality, membership of a particular social group or political opinion. Thus, applying the law applicable to non-refoulement protection, it was not satisfied that the Applicant is entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal.

Legal principles applicable to judicial review

9.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

10.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he asserted that his life would be in danger if refouled. He made no specific complaints as to what is wrong in the Board’s Decision. In the absence of specific grounds of application or grounds with sufficient particulars, the Court 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.

Conclusion

11.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness. The Board assessed the Applicant’s evidence carefully, tested it against common sense and credible COI. It was on that basis that the Board found the Applicant’s account was not credible. It was not satisfied that he had operated a livestock farm, borrowed money from a moneylender, that his pigs were killed by the African Swine Fever, that he was unable to pay interest to the moneylender and was at risk of harm from the moneylender. He had failed to prove the factual basis to support his claim for non-refoulement protection. It also found reasonable state protection would be available from the local police. On the evidence, it was open to the Board to make such finding of facts. Then, applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law of 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.

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