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HCAL 1575/2021
[2025] HKCFI 5388
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1575 OF 2021
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Nguyen Tien Hai |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. The Applicant is a 37-year-old national of Vietnam who entered Hong Kong illegally on 15 July 2020 and was arrested by police on 10 August 2020. 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 over his outstanding debts. He was subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Thuy Nguyen City, Hai Phong, Vietnam. After leaving school he worked as a farmer, got married and raised a family with 2 children in his home district.
3. In early 2019 he started his own shrimps farm business with the help of a loan borrowed from a local money-lender with monthly installment repayments with interests which he initially managed to make from his business income.
4. However, in April 2020 he lost his business after his shrimps stock was wiped out by some unknown plague, and when he defaulted with his loan repayments, his creditor started to send men to threaten him, and was on one occasion beaten by those men with iron pipes so severely that he collapsed and fainted, and was subsequently hospitalized for 2 months.
5. As a result the Applicant became fearful for his life and fled to Mong Cai upon his discharge from hospital, and on 15 July 2020 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 7 April 2021 and attended screening interview before the Immigration Department with legal representation.
6. By a Notice of Decision dated 7 June 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”).
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 monetary 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 100 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 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.
8. On 15 June 2021 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 5 October 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 November 2021 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 over any debts 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 debts, and 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 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 that his claim for non-refoulement protection failed on all applicable grounds.
10. On 16 November 2021 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 repeated his claim as before 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.
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 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 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.
13. 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.
14. Moreover, the Applicant recently on 20 October 2025 filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.
15. In the premises, 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, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application.
Dated the 18th of November 2025
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(Teresa Ng)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on the 18th day of November 2025
Nguyen Tien Hai
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on the 18th day of November 2025
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 18126/21/6/104/V2887
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 330/21 (formerly
RBCZ 10284/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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