NGUYEN VAN THAO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1513/2020

[2025] HKCFI 3900

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1513 OF 2020

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 / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 50-year-old national of Vietnam who entered Hong Kong illegally on 19 June 2016 and surrendered to the Immigration Department on 27 June 2016 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 the family of the victim killed by him in a traffic accident. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Xa An Son, Huyen Thuy Nguyen, Hai Phong, Vietnam. After leaving school he worked in various jobs including fisherman, farmer, construction worker and driver to make his living, got married and raised a family with 2 children in his home district. One day in mid-2016 while driving his car to work in Hai Phong, he struck and killed a man crossing the road from his house without looking, whereupon some family members of the victim came rushing out to attack the Applicant with wooden sticks and other weapons, but the Applicant managed to flee from the scene to seek medical treatments.

3.  Shortly thereafter he received a telephone call from his wife that those family members of the victim had come to his home looking for him, and when they could not find him, they threatened and beat his wife and mother, and also damaged his household items, whereupon his wife warned him not to return home to save his life.

4.  As a result the Applicant fled to Mong Cai and stayed away from his home, and when he later heard that the victim’s family was still looking for him everywhere, he therefore departed Vietnam on 17 June 2016 for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 August 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 14 September 2018 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed or killed by the victim’s family due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the victim’s family to seriously harm or kill him other than angry words and empty threats, that in any event it was a private traffic accident dispute between him and the victim’s family 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 96 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 anyone to locate him.

7.  On 27 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 3 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 July 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  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 family of any victim of any traffic accident 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 the family of the accident victim to seriously harm or kill him, and that in any event it was a private and personal dispute between them 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 anyone that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 16 July 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 but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for 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.

10.  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.

11.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  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.

13.  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