TRAN QUANG THANH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1554/2024

[2025] HKCFI 5139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1554 OF 2024

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:

1.  The Applicant is a 54-year-old national of Vietnam who had in the past 30 years or more repeatedly entered Hong Kong illegally during which he was arrested and convicted of various offences including theft and possession of forged identity documents and was invariably deported upon discharge from prison, did so again on 6 April 2016 when he entered Hong Kong illegally and then raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor, a loan shark by the name of Mr Son, for failing to repay his debts. He was subsequently released on recognizance pending the determination of his claim.

2.  By a Notice of Decision dated 31 July 2017 the Director of Immigration (“Director”) rejected his claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from his creditor, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 95 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

4.  The Applicant did not then lodge any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and instead thereafter failed to report on his recognizance to the Immigration Department and just disappeared for the next 3 years until 5 September 2020 when he was arrested by police.

5.  Whilst being detained pending prosecution, the Applicant on 23 October 2020 in writing by his lawyer to the Immigration Department requested to raise a subsequent claim under Section 37ZO of the Immigration Ordinance that he still feared of being harmed or killed by his creditor Mr Son if refouled to Vietnam, and produced a copy of the loan agreement in support of his claimed loan which he was subsequently unable to repay and which led to the threats from his creditor.

6.  By a Notice of Decision dated 12 January 2021, the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to satisfy the requirements therefor under Section 37ZO(2) of the Immigration Ordinance to provide any evidence in writing to satisfy an immigration officer that there had been any significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given the unchallenged findings by the Director in his previous claim of the availability of state protection and reasonable internal relocation to him upon his return to Vietnam to similarly negate whatever risk that may arise from his intended subsequent claim.

7.  The Applicant’s application for leave to apply for judicial review of the Director’s decision was then refused by this Court on 30 September 2021 upon finding none of his proposed grounds for his intended challenge reasonably arguable, that there was no error pf law or procedural unfairness in his request to the Director or in his decision, and that there was no prospect of success in his intended application (HCAL 74/2021 [2021] HKCFI 2927).

8.  The Applicant never brought any appeal to the Court of Appeal against the Court’s decision, and instead on 2 November 2022 he lodged an appeal to the Board against the very first decision of the Director of 31 July 2017 which rejected his non-refoulement claim, and as it was clearly outside the 14-day period for him to appeal under Section 37ZS(1) of the Immigration Ordinance, in pursuance of Section 37ZT(2) of the Ordinance as amended on 1 August 2021, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s notice of appeal by taking account only of the stated reasons for his late filing and any evidence relied on in support of such reasons.

9.  By a decision dated 22 September 2022, the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it was more than 5 years out of time, and that his stated reasons of having some medical issue at that time but which was unsupported by any documentary evidence, while his alleged impact of the Covid-19 pandemic was not acceptable to justify his such serious delay given the fact that during that period he was able to undertake various other legal processes for his claims as noted above that the Board was not satisfied that he had exercised all due diligence to file the notice of appeal within the specified period or that he failed to do so due to any circumstances beyond his control.

10.  The Applicant’s subsequent application to the Court for leave to apply for judicial review of the Board’s decision was also refused by DHCJ To on 30 May 2024 upon finding his proposed grounds not reasonably arguable, that there was no error of law or procedural unfairness in his appeal to the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 1547/2022 [2024] HKCFI 1473.

11.  Again the Applicant did not bring any appeal to the Court of Appeal against the Court’s decision, and instead on 9 August 2024 he again raised a non-refoulement claim based on the same factual basis as before of his claimed fear of being harmed or killed by his creditor Mr Son over the same debts as in his already rejected and determined previous claim, and accordingly the Director by a decision dated 13 August 2024 refused to allow the Applicant to raise a non-refoulement claim again as stipulated under Section 37ZO(1) of the Immigration Ordinance, and as his request to make a subsequent claim based on the same facts had already been refused as noted above.

12.  The Applicant on 23 August 2024 tried to lodge an appeal to the Board against this decision of the Director but was refused by the Board on 29 August 2024 on the basis that his intended appeal did not come within any of the provisions under Section 37ZR of the Immigration Ordinance.

13.  On 10 September 2024, the Applicant filed his Form 86 in these proceedings for leave to apply for judicial review of both decision of the Director and the Board, but no proper ground for seeking relief was given in his Form or his supporting affirmation of the same date other than just a regurgitation of his claims as before and with some bare assertion that their decisions were unreasonable and procedurally unfair but without any relevant or necessary details or particulars as to how they were so, nor was he able to do so at the hearing of his leave application other than a failed attempt to seek adjournment of the hearing to enable him to seek legal aid or legal representation which was found to be also wholly unmeritorious. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of either decisions.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the Director was in my view correct to refuse to allow him to raise his non-refoulement claim again based on the same facts as in his previous claim which had already been rejected while his request to make a subsequent claim again based on the same facts had also been refused, and that the Board was also correct not to allow him to lodge his appeal as this decision of the Director is clearly not one that comes within any of the provisions allowed under Section 37ZR of the Immigration Ordinance as not one to refuse to re-open a non-refoulement claim (as under (a)), or one rejecting a non-refoulement claim (as under (b)), or a revocation decision by an immigration officer (as under (c)) as stipulated. As such, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the decision of the Director or the Board.

16.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration of the Applicant’s case.

17.  For these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

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