LE TUYET THANH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1930/2020

[2025] HKCFI 4777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1930 OF 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Vietnam who last entered Hong Kong illegally on 29 February 2020 and surrendered to the Immigration Department on 5 May 2020 when he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts and/or prosecuted by the authorities for the explosion occurred in his mining business that had injured many of his workers.

2.  The Applicant was born and raised in Ha Long City, Quang Ninh Province, Vietnam. After leaving school he assisted his father in repairing boats, got married and raised a family with 2 children in his home district.

3.  In 2006 he changed his job to work in a mining company until 2015 when he started his own mining business in partnership with a friend Binh, and in 2016 when Binh decided to leave the business, the Applicant bought out her share with the help of a loan borrowed from a local money-lender to be repaid within 1 year and with monthly interest payments which he managed to make from his business income.

4.  However, in late 2016 there was an explosion in his mine which injured many of his workers which led to its closure by the authorities which also started an investigation into the cause of the explosion, and as a result the Applicant lost his business, and when he subsequently defaulted with his loan repayments, his creditor then sent men to threaten him, and after being beaten by those men on 2 occasions, the Applicant departed Vietnam on 30 July 2017 for China, and from there he then sneaked into Hong Kong, and upon his subsequent arrest by the police he was repatriated to Vietnam in July 2019.

5.  Upon returning to his home district, the Applicant kept hiding in various places from his creditor, and when he later heard that his creditor had sent his followers looking for him everywhere, the Applicant on 23 December 2019 again departed Vietnam for China, and from there he again sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection to the Immigration Department, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 June 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 7 July 2020 the Director of Immigration (“Director”) rejected the Applicant’s 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”).

7.  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 and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, 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 dispute between 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 98 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 Hanoi where it would be difficult if not impossible for his creditor to locate him, while there is no reliable evidence of the Vietnamese authorities having any adverse interest in him, and if they were to charge or prosecute him for any liability issue over the mining explosion in 2016, the Applicant would be a fugitive of the law and hence not entitled to non-refoulement protection in Hong Kong.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 4 September 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 September 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any creditor or the Vietnamese authorities over any mining explosion that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Vietnam were true that there was no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his loan which was therefore a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his creditor, while there is no reliable evidence that he had actually been charged by the authorities over the explosion in his mines other than a subpoena for him to assist the police in their investigation which occurred years ago that any charge or prosecution against him would have been made by the time of his first departure of Vietnam in 2017 or his subsequent return to the country in 2019 when he was never arrested or charged upon his re-entry that it is not accepted that after all these years that the Vietnamese authorities would still have any adverse interest in him that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 25 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he does not agree with the decision and repeated his claim that his life is in danger in his home country that he cannot return but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm from his creditor in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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 and assessment of the Applicant’s claim.

15.  For all 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