VU VAN THANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2883/2019

[2025] HKCFI 2512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2883 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 6 September 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. However, he was absent at the hearing on 10 April 2025. I shall deal with his application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.   The applicant, aged 36, is a national of Vietnam. He was arrested by police on 10 February 2019 and referred to the Immigration Department. He admitted that he sneaked in Hong Kong illegally by boat on 6 February 2019 from Shen Zhen. He lodged a non-refoulement claim to the Immigration Department by written representation on the basis that, on refouled, he will be harmed or killed by the loan shark because he was unable to repay his loan.

5.  According to the applicant, he had borrowed 1500 million of Vietnamese Dongs from the loan shark for his timber business, which failed and he was unable to repay the loan. The loan shark had brought with him a number of people to his home where they smashed the furniture and assaulted him, causing his left arm broken. He had tried to live elsewhere to avoid them. However, he was located by them from time to time. Finally, he left Vietnam for China and Hong Kong.

6.  Details of his claim are set out at paragraph of the Notice of Decision dated 22 May 2019 (“Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) from the past experience, the loan shark did not have the intention of killing him and there was no evidence that the state was involved; (ii) state protection will be available; and (iii) internal relocation is viable. [14]-[27]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 13 August 2019, the Board conducted an oral hearing for his appeal.

10.  Having considered the evidence, the Board dismissed his appeal and confirmed the Director’s Decision for the reasons below.

(1) His evidence to the Director and before Board was contradictory, which showed that he was not a witness of truth. The Board found that it could not rely upon his evidence to make its decisions in his favour. [28]

(2) Even if his evidence were accepted, the chance of risk of harm from his creditor was very remote, and internal relocation would be his best choice as there was no evidence that the loan shark had the ability to locate him throughout the country. [29]-[37]

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 2 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not state his ground in Form 86.

12.  In his affirmation in support of his application, the applicant said that he did not agree with the Board and he asked for leave for judicial review of it.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  The Board, for the reasons given above, found that the applicant’s evidence was not reliable and that even if his evidence were accepted, he does not have real risk of harm from the loan shark if he returns to Vietnam.

17.  There is no valid ground from the applicant to challenge the Board’s Decision.

18.  There is no reason that the Court should interfere with the Board’s finding of the facts.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.