TO VAN KIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2776/2019

[2025] HKCFI 2463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2776 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr. To Van Kien (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 23 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 17 May 2019 (“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 13 August 1983 in Hai Phong, Vietnam. He had received 12 years of education. He worked as a shoes making worker from 2002 to 2018 and started his shoes selling business (“Business”) in 2018 at Hai Phong.

3.  The Applicant claimed that in March 2018, he borrowed Vietnamese Dong (“VND”) 300 million at weekly interest of VND 1,300,000 (“Loan”) from a moneylender (“Lender”) in Vietnam to start the Business. The Loan was to be repaid in 1 year.

4.  The Business started suffering loss within a few months and was eventually closed. The Applicant did not make any payment to the Lender since September 2018.

5.  On a day in September 2018, the Lender’s brother came with 4 men to chase the Applicant for repayment of the Loan. When the Applicant was unable to pay, they hit the Applicant’s back twice with wooden sticks and cut the tip of the Applicant’s left middle finger with knife (“1^st Attack”). In defence, the Applicant chopped the back of the Lender’s brother with knife and ran away.

6.  The Applicant did not report the 1^st Attack to the police. He received treatment in a private clinic. His left hand finger injuries recovered after about 1 month but his back was still painful.

7.  On another day in September 2018, the Lender came to the Applicant’s home with some plainclothes police to chase for repayment of the Loan. When the Applicant explained to the Lender the failure of the Business and his inability to repay the Loan, the Lender was very angry. He threatened the Applicant in the presence of the police that if the Applicant did not repay the Loan, he would kill the Applicant. The Applicant asked for time to repay and the Lender only agreed to allow another month for the Applicant to source funds for repayment.

8.  A few weeks later, the Lender came with his underlings and some plainclothes police. When the Applicant was still unable to repay the Loan, they beat the Applicant with fists and wooden sticks for 10 minutes and threatened to kill the Applicant if he still failed to repay (“2^nd Attack”). The Applicant asked for a last chance to source funds for repayment.

9.  The Applicant suffered severe back injuries in the 2^nd Attack. He received treatment in a private clinic. His back was still painful. He did not report the 2^nd Attack to the police.

10.  In October 2018, with the assistance of his friends, the Applicant tried to negotiate a debt restructuring with the Lender. The Applicant proposed to repay the Loan in 3 years. The proposal was not accepted by the Lender and a fight broke out between the 2 camps (“Fight”). The Applicant suffered back injuries in the Fight but managed to escape. He did not report the Fight to the police and received treatment in a private clinic. It took about half a month for him to recover.

11.  On a day in December 2018, the Lender came with his underlings and some plainclothes police to the Applicant’s home. One of them was holding a knife. The Applicant was scared and ran away from his home immediately. His parents subsequently told the Applicant that the Lender threatened his parents that the Lender would kill the Applicant upon finding him. His parents also told the Applicant through his friend that the plainclothes police had threatened the Applicant’s parents that they would arrest the Applicant and frame him with false serious criminal charges upon finding the Applicant.

12.  The Applicant hid in his friend’s place for 1 to 2 days before he went to his uncle’s home in Ho Chi Minh City. He stayed there for about 2 months and departed Vietnam on 4 February 2019 to sneak into Hong Kong on 6 February 2019 via Mainland China.

13.  He was arrested by the Hong Kong police on 9 February 2019.

14.  The Applicant was told by his younger sister in March 2019 that the Lender still came to the Applicant’s home to look for him. When they failed to find the Applicant, they threatened his parents as previously. The Lender also posted the Applicant’s photo on facebook and put up an award of HK$15,000 to find him.

15.  The Applicant claimed that the Lender would harm or even kill him and the Vietnamese police would arrest and frame him with false charges if he were returned to Vietnam because he was unable to repay the Loan.

16.  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 risk”); 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” and “persecution risk”).

17.  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.

18.  On 20 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 both the Board and the Immigration Department as the proposed respondents and interested parties.

19.  Although the DOI Decision and the Board’s Decision were issued in Chinese, the Applicant filed the Form 86 and the Supporting Affirmation in English. I decided to issue this judgment also in English.

Legal principles applicable to judicial review

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

21.  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.”

22.  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

23.  The Applicant did not put forward any grounds for his intended judicial review in the Form 86 or the Supporting Affirmation. In the Supporting Affirmation, he only stated that he did not agree to the Board’s Decision and he could not go back to his home country because his life was in danger over there. He exhibited no supporting documents to the Supporting Affirmation.

24.  The Applicant failed to attend the court hearing scheduled for 24 April 2025 despite notice of hearing dated 28 March 2025 having been sent to him and not being returned. The Applicant had also failed to respond to a previous letter dated 5 March 2025 sent by the court to him inviting him to submit his submissions to the court. As such, I proceeded to deal with the Applicant’s application for leave for judicial review of the Board’s Decision according to the papers placed before the court.

25.  In §§17-29 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 contradiction and inconsistencies between the Applicant’s evidence provided to the Board and that provided to the Director. The Board found that the Applicant was not a witness of truth and rejected his evidence.

26.  For reasons set out in §§32-46 of the Board’s Decision, the Board was of the further view that even accepting the Applicant’s evidence given to the Director, the Applicant still failed to establish his claim under any of the applicable grounds under the USM.

27.  After considering the relevant country of origin information (“COI”), the Board found that internal relocation to other places in Vietnam was viable for the Applicant. (§§45-46 of the Board’s Decision)

28.  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.

29.  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.

30.  The Board found the Applicant’s various accounts of event not credible and rejected them as untruthful. The Board did not accept that the Lender was able to trace the Applicant all over Vietnam.

31.  In §§47-63 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM.

32.  The Board was of the view that the Applicant’s fear of being arrested or framed with false charges by the Vietnamese police, even if true, was not covered by any of the applicable grounds under the USM. (§63 of the Board’s Decision)

33.  The Board assessed the risk of harm from the Lender to be low and found no evidence showing that the Vietnamese government was involved in the alleged acts of the Lender. The Board found that the Applicant’s case did not fall within “torture” as defined in Section 37U of the Ordinance. There was no evidence to show that the Applicant would be arbitrarily deprived of his life in violation of BOR 2 if he were refouled to Vietnam. The Board also did not accept that the Applicant would face the BOR 3 risk if he were returned to Vietnam. The Applicant’s dispute with the Lender was private dispute and not one of the subject matters referred to in the Refugees Convention. The Board found that there was no evidence to support the Applicant’s claim for the persecution risk.

34.  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 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

35.  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