TO HOANG CONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2775/2019

[2025] HKCFI 2189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2775 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr. To Hoang Cong (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 23 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 17 May 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the NRC

2.  The Applicant is a Vietnamese born on 21 January 1981 in Hai Phong, Vietnam.  He had received 9 years of education and had about 20 years work experience.  He started his electric appliances wholesale business (“Business”) in 2015 at his hometown.

3.  The Applicant claimed that in 2015 he borrowed Vietnamese Dong (“VND”) 500 million at monthly interest of 10% (“Loan”) from a moneylender (“Lender”) in Vietnam to start the Business.  Provided that he paid the monthly interest, no repayment date was set for repayment of the principal.

4.  The Applicant paid the monthly interest to the Lender in 2015 and 2016.  In late 2016, the Business suffered bad debts amounted to VND 1,000 million when customers failed to pay the purchase price after collecting the goods and disappeared.

5.  When the Lender knew the Business got into problems, he came to confiscate the remaining stocks of the Business and sold them for VND 200 million.  The Lender said that the sale proceeds could only cover interest for the Loan.

6.  From end of 2016 to April 2017, the Lender on 3 occasions sent 4 to 5 of his underlings to the Applicant’s home to chase for repayment of the Loan.  Each time, they assaulted the Applicant and threatened to kill him if he still failed to repay the Loan.

7.  He received treatments from medical clinic nearby for his injuries after the first 2 attacks and reported the 2 attacks to the police but the police did not take action on the ground that this was private dispute.

8.  The Lender’s underlings last assaulted the Applicant in April 2017.  He did not seek medical treatment or report to the police after the third attack. 

9.  The Applicant’s friend suggested him to seek protection in Hong Kong.  He departed Vietnam on 9 April 2017 for Mainland China and from the Mainland sneaked into Hong Kong on 12 April 2017.  He was arrested by the Hong Kong police on 13 April 2017 and repatriated back to Vietnam on 24 July 2017.

10.  A few days after the Applicant returned to Vietnam, the Lender and his underlings came to his home.  They took him away from his home and detained him for 3 days. He was assaulted during the detention and was released only after his family repaid VND 200 million to the Lender.  The Lender said that the payment could only cover part of the outstanding interest and that he still owed the Lender VND 1,100 million.  The Lender required the Applicant to repay the outstanding as soon as possible.

11.  Knowing that the Lender would chase after him, the Applicant went to hid at the homes of his friends and relatives in different places of Vietnam until February 2019 when he departed Vietnam again to sneaked into Mainland China.  From the Mainland, the Applicant sneaked into Hong Kong again on 6 February 2019.  He was arrested by the Hong Kong police after a few days and he lodged the Claim in March 2019.   

12.  The Applicant was told by his mother in April 2019 that the Lender still came to his home everyday to look for him but the Lender did not harm his mother.

13.  The Applicant claimed that the Lender would harm or even kill him if he were returned to Vietnam because he was unable to repay the Loan.

14.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

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

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention” and “persecution risk”).

15.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

16.  On 20 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named both the Board and the Director as the proposed respondents and interested parties.

17.  Although the DOI Decision and the Board’s Decision were issued in Chinese, the Applicant filed the Form 86 and the Supporting Affirmation in English.  I decided to issue this judgment also in English.

Legal principles applicable to judicial review

18.  In a judicial review, the court does not step into the shoes of the decision makers.

19.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

20.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

21.  The Applicant did not put forward any grounds for his intended judicial review in the Form 86 or the Supporting Affirmation.  In the Supporting Affirmation, he only stated that he did not agree to the Board’s Decision and he could not go back to his home country because his life was in danger over there.  He exhibited no supporting documents to the Supporting Affirmation.

22.  The Applicant failed to attend the court hearing scheduled for 10 April 2025 despite notice of hearing dated 17 March 2025 having been sent to him and not being returned. The Applicant had also failed to respond to a previous letter dated 18 February 2025 sent by the court to him inviting him to submit his submissions to the court.  As such, I proceeded to deal with the Applicant’s application for leave for judicial review of the Board’s Decision according to the papers placed before the court.

23.  In §§23-31 of the Board’s Decision, the Board discussed the Applicant’s evidence given at the hearing before the Board in some details.  The Board found substantial contradiction and inconsistencies between the Applicant’s evidence provided to the Board and that provided to the Director.  The Board found that the Applicant was not a witness of truth and rejected his evidence.

24.  For reasons set out in §§34-42 of the Board’s Decision, the Board was of the further view that even accepting the Applicant’s evidence given to the Director, the Applicant still failed to establish his claim under any of the applicable grounds under the USM. 

25.  After considering the relevant country of origin information (“COI”), the Board found that internal relocation to other places in Vietnam was viable for the Applicant. (§§41-42 of the Board’s Decision)

26.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

27.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

28.  The Board found the Applicant’s various accounts of event not credible and rejected them as untruthful.  The Board did not accept that the Lender was able to trace the Applicant all over Vietnam. 

29.  In §§43-58 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM. 

30.  The Board assessed the risk of harm from the Lender to be low and found no evidence showing that the Vietnamese government was involved in the alleged acts of the Lender or would not protect the Applicant if he reported the matters to the higher authorities.  The Board found that the Applicant’s case did not fall within “torture” as defined in Section 37U of the Ordinance.  There was no evidence to show that the Applicant would be arbitrarily deprived of his life in violation of BOR 2 if he were refouled to Vietnam.  The Board also did not accept that the Applicant would face the BOR 3 risk if he were returned to Vietnam.  The dispute with the Lender was private dispute and not one of the subject matters referred to in the Refugees Convention.  The Board found that there was no evidence to support the Applicant’s claim for the persecution risk.

31.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection.  These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

32.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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