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HCAL 2997/2019
[2025] HKCFI 1793
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2997 of 2019
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BETWEEN
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Le Van Tai |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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 To:
1. Leave to amend the Form 86 be granted; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 11 October 2019 seeking leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 3 September 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 August 2017 (the “Notice”) refusing his application for non-refoulement protection.
2. Enquiries revealed that the Board had not made any decision relating to the Applicant dated 3 September 2019, but had made one dated 30 August 2019 in respect of his appeal against the Notice. That must be the decision which the Applicant intended to review. Accordingly, leave was granted to amend the Form 86 to that effect to reflect his true intention.
3. The Applicant is a Vietnamese national, now aged 31. He was arrested by the police on 21 February 2016 for having entered Hong Kong illegally. He was referred to the Immigration Department on 27 February 2016. On 29 February 2016, he raised a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that he would be harmed or even killed by a moneylender (the “moneylender”) upon his return to Vietnam for being unable to repay two loans borrowed by him from the moneylender.
5. The Applicant is single. He has received 12 years’ education and had one year’s working experience as a casual worker. In 2015, he borrowed 50 million Vietnamese Dong (VND) from the moneylender at an interest rate of 10% per month to meet the operation costs for her mother’s left ear. No repayment date was fixed. He signed a written loan agreement and was given a copy. He knew the moneylender had triad background. He was unemployed and was unable to pay the monthly interest. Thus, he and his father borrowed money from their friends to pay the monthly interest. Her mother recovered well after the operation.
6. In mid-2015, his mother’s right ear was unwell and required an operation costing 40 million VND. He borrowed another 50 million VND from the moneylender on similar terms. He used 10 million VND for their living expenses. His mother also recovered well.
7. In August 2015, the moneylender and six of his men went to his home and told him to repay quickly. He promised he would repay. The moneylender and his men left.
8. At the end of August 2015, the moneylender and four of his men went to his home to collect repayment. They were armed with water pipes and wooden sticks. When he said he could not pay, the men punched and kicked him for about two hours and vandalized the furniture in his home. He suffered bruises on his body. He did not seek medical treatment as he had no money. He treated himself with medicinal oil and recovered fully in half a month. He did not make a report to the police about the assault as he thought he was in the wrong for not being able to pay. On the same night, he fled to Hai Phong City to stay with his friend. While he was away, the moneylender and his men went to his home and threatened his parents to disclose his whereabouts. They did not hurt his parents. The Applicant returned to his home after staying in Hai Phong City for ten days.
9. In September 2015, the moneylender and eight of his men armed with water pipes and wooden sticks came. They did not assault the Applicant but threatened to kill him if he did not pay. They scolded him and demanded he pay 150 million VND and interest before the end of October 2015. The Applicant agreed and signed an agreement to that effect. Then, he went to make a complaint to the police station with the three copy loan agreements. The police did not accept his complaint but did not return him the copy loan agreements.
10. When the moneylender and nine of his armed men came in October 2015, the Applicant fled from the back door. He went to stay with his friend in Hai Phong City and worked as a transportation worker. He learned from his family that the moneylender vandalised the furniture and took away valuables in his home. The moneylender also threatened to kill him, but did not hurt his parents. On 19 February 2016, the Applicant fled to the Mainland and then sneaked into Hong Kong on 21 February 2016.
Finding of the Board
11. The Board held a remote hearing by video link. After confirming his evidence in the hearing bundle was true and correct and adopting them as evidence, the Applicant elected not to testify. The Board explained it had concerns about certain questionable issues in his claim. The more significant concerns are the lack of medical evidence about his mother’s illness, the plausibility that he and his father could finance the payment of monthly interest by borrowing, and why he returned to his home in September 2015 knowing that the moneylender would come for him. There are other less significant concerns which may be explained by his evidence in the NCF, if such evidence was accepted. At first, he answered a few questions but then repeated his intention that he no longer wanted to answer further questions. He was reminded of his right to make final submission, but he had nothing to say.
12. The Board found discrepancies even between the very limited testimony he gave before the Board and his evidence in his NCF. For example, in his NCF he said there was no stipulated date for repayment of the loans, but in his testimony he said there were. The Board also found part of his evidence implausible. For example, that the police officers took away his copy loan agreements when they were not accepting his complaint and that he did not ask for them to be returned. The Board also rejected his explanation that he did not do so for fear of revenge from the moneylender as not making any sense.
13. In view of all these concerns, inconsistencies and inherent improbabilities, the Board found the Applicant’s evidence questionable and unreliable. It was not persuaded even to the low standard of proof required that the Applicant had borrowed money from the moneylender and had been threatened with death and assaulted by the moneylender in Vietnam.
14. The Board found, even assuming his evidence were accepted (which it did not), that the ill-treatment did not attain the degree of severity required to establish a non-refoulement claim, there were no state actors involved in the alleged ill-treatment by the moneylender, that the alleged harm did not arise out of a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol and that there was no evidence of risk of violation to the Applicant’s right to life.
15. The Board also found on the basis of authoritative and credible country of origin information that reasonable state protection will be available to the Applicant if he returns to Vietnam and that he can also avoid the risk of harm by internal relocation.
16. For all these reasons the Board found the Applicant had failed to establish his claim for non-refoulement protection under any of the applicable grounds under the USM and dismissed his appeal against the decision in the Notice.
The legal principles applicable to judicial review
17. The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh. The primary decision-makers in a claim for non‑refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
18. The Applicant did not put forward any grounds of application for judicial review in his Form 86. In his supporting affirmation, he said the Board did not consider his case carefully. In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove the factual basis in support of his claim to non-refoulement protection. For reasons as explained in the preceding section, this is not permissible in an application for judicial review. He also complained he was in prison and could not obtain documents to support his claim. He had been in Hong Kong for about 16 months before he completed his NCF. Since then, he had another four weeks before he attended the screening interview or about 21 months before he attended the appeal before Board to obtain the documents. He had legal assistance when completing his NCF and was legally represented during the screening interview. If he had documentary evidence to support his claim, he could have obtained them through his lawyer before the screening interview or his lawyer could have applied for an adjournment to enable him to do so. He had another 19 months between the screening interview and the appeal to obtain the documents, if he only came to realise their importance after the interview. In any event, being held in custody did not and could not prevent him from communicating with his family in Vietnam to obtain the documents for him. There is no substance in his grounds of application in his supporting affirmation.
19. At the hearing, after the legal principles in the preceding section had been explained to him, he confirmed that he had no complaint about error of law, procedural unfairness or irrationality and left it to the Court to look for such vitiating elements in the Decision for him. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Discussion
20. Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues involved in the claim. The Applicant’s claim is founded on the threat of death by his moneylender for not being able to repay the loans and interest. The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of his risk of harm. The Board had carefully weighed the evidence and assessed his credibility. Because of the multiple and significant inconsistencies in his evidence, the Board found him incredible. It found he had failed to prove the existence of the loans and threats even to the low standard of proof required. As the Applicant bears the burden of proving his claim, such a finding is fatal. The Board did not stop there. It also assessed his claim on the basis of the case as he asserted. Even on the basis of his evidence, the Board found that there was no factual basis to support his claims for non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of law and of fact. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are within the realm of the Board, which the court in an application for judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision. The Court could detect no errors of law or procedural unfairness in the Decision. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. The Decision is utterly without fault. Having considered his grounds for application, the Court is satisfied that the Applicant’s grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
21. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
Dated the 8th day of May 2025
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( Seline Sze )
for Registrar, High Court
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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 the Applicant’s 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 08/05/2025
Le Van Tai
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 08/05/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8199/17/8/237/V1610
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1443/17 (Formerly RBCZ 11293/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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