TRAN VAN MINH v. TORTURE CLAIMS APPEAL BOARD

HCAL 61/2023

[2026] HKCFI 3811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 61 OF 2023

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 the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of Vietnam who entered Hong Kong illegally on 12 March 2021 and was arrested by police on 14 April 2021. After he was referred to the Immigration Department for investigation, 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 for failing to repay his debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Thuy Nguyen Province, Hai Phong, Vietnam. After leaving school he started his own restaurant business in his home district with the help of a loan borrowed in January 2019 from some local money-lender to be repaid by monthly instalments with interests which he initially managed to make from his restaurant income.

3.  However, his business did not fare well, and by November 2019 he started to default in his loan repayment, whereupon his creditor sent men to threaten him and vandalize his restaurant.

4.  After his restaurant was closed down in December 2020, and to avoid further threats from his creditor, the Applicant fled from his home to hide in a friend’s place, and on 10 March 2021 he departed Vietnam for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 October 2021 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 9 December 2021 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 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 monetary dispute between him and his creditor 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 98 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Da Nang or Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

7.  On 26 May 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his notice of appeal was deemed to have been filed outside the 14-day period after notice of the decision is given to him under Section 37ZS (1) of the Immigration Ordinance, and 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, and in doing so to only take account of the statement of reasons, if any, for his late filing as stated in the notice of appeal and the evidence relied on in support of such reasons.

8.  By a Decision[1] dated 26 October 2022 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that the Director’s decision had been sent on the same day of 9 December 2021 to the Applicant via his lawyer without being returned through undelivered post, that the deadline for the Applicant to file his notice of appeal was 28 December 2021, that the actual filing of his notice of appeal on 26 May 2022 was almost 5 months late, that his stated reason of being sick at that time and was isolated at home was devoid of any necessary or relevant details or particulars or evidence in support, that even if his sickness were due to Covid-19 as alleged that the quarantine period at the material time was found to be no more than 21 days only which cannot justify his almost 5 months delay that the Board was not satisfied that the Applicant had under his stated circumstances exercised all due diligence to file his notice of appeal but was unable to do so due to circumstances beyond his control, and while Section 37ZS (2) as amended no longer requires any consideration of the merits of the intended appeal, the Board nevertheless did so and agreed with the Director’s decision that the risk of the Applicant’s claim even on his own case arose from a private monetary dispute between him and his creditor only without any state involvement that it would be negated by the availability of both state protection and internal relocation that there was simply no merits in the Applicant’s claim and intended appeal.

9.  On 16 January 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from the killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

10.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case when they all referred to the assessment and determination of non-refoulement claims but in fact in the Applicant’s case that the Board’s decision was to refuse the late filing of his notice of appeal that none of these complaints as stated above are relevant or applicable to such decision. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant who also failed to attend the scheduled hearing of his application without any explanation, I do not find any of them reasonably arguable for his intended challenge.

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 refused the late filing of his appeal for the thorough and detailed analysis and reasoning set out in its decision in proper compliance of the relevant Section 37ZT of the Immigration Ordinance as amended, and has in fact gone beyond its duty to also take into account of the merits of his intended appeal, and in the absence of any error of law or procedural unfairness in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board to refuse the late filing of the Applicant’s appeal.

13.  In the premises, and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure on its part to apply high standards of fairness in its consideration and refusal of the late filing of the Applicant’s notice of appeal.

14.  As I am for the given reasons 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