LE VAN DAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 815/2022

[2026] HKCFI 3053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 815 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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 23 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 14 April 2022 (the “Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 2 February 2021 (the “Notice”) refusing his application for non‑refoulement protection. 

The Applicant’s claim

2.  The Applicant is a Vietnamese national, now aged 33.  He had received 12 years’ education and had two years’ working experience as a factory worker and driver.  He had previously entered Hong Kong illegally in September 2014 and was repatriated back to Vietnam on 21 November 2014.  He was again arrested by the police on 22 July 2020 claiming to have departed Vietnam on 17 June 2020 and sneaked into Hong Kong on 22 June 2020.  He lodged a non-refoulement claim by written signification on 31 July and 4 August 2020.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims, if returned to Vietnam, he will be harmed or killed by a moneylender for being unable to repay the loan he had borrowed from the moneylender.

3.  The Applicant’s case as advanced in his non-refoulement claim form (“NCF”) and record of his screening interview (“ROI”) (collectively, the “original information”) is as follows.  In March 2019, he borrowed 500 million Vietnamese Dongs (“Dongs”) from a moneylender connected to a “black society” for a term of one year at a monthly interest of 25 million Dongs for the purpose of starting a restaurant.  He was able to pay interest for 6 months.  In September 2019, he was unable to pay due to economic downturn.  In October 2019, the moneylender and five henchmen came to his restaurant.  They hit him with wooden rods.  They gave him two months to pay the interest and threatened to kill him if he did not.  The Applicant took half a month to recover. 

4.  The moneylender and his henchmen came again in December 2019.  The Applicant was unable to pay.  They vandalised his restaurant and said they would come again in a month.  The Applicant did not seek treatment in the hospital or clinic.  It took more than ten days for him to recover.

5.  In January 2020, the moneylender and his henchmen came.  They demanded repayment of the principal and outstanding interest. The Applicant paid them 30 million Dongs which he had borrowed from his family members.  Yet, they hit him with wooden rod (the “January 2020 incident”).  The Applicant fell unconscious.  He was taken to the hospital and hospitalised for three days.  He received five stitches on his head.  It took him about a month to recover.  The Applicant’s parents made a report to the police and paid a bribe of 5 million Dongs for their complaint to be filed. 

6.  In February 2020, the Applicant came across two of the henchmen in the street.  They assaulted him (the “February 2020 incident”).  He fled to a police station, but the police did not help him because he had no money to pay a bribe and the police were afraid that the henchmen would revenge on them.  The Applicant went to hide in his friend’s home in Mong Cai for about four months.  Then he fled to Dongxing in China and from there he sneaked into Hong Kong. 

The Board’s finding

7.  The Applicant testified before the Board.  The Board found numerous internal inconsistencies among his evidence in his NCF, ROI and his testimony before the Board.  His account is also inconsistent with the country of origin information (“COI”).  These inconsistencies are discussed in pages 21 to 30 of the Board’s Decision.  Hereunder are some of the more salient inconsistencies. 

8.  His testimony that he executed two copies of loan agreements containing the terms of the loan and was given a copy contradicts the COI that loan-sharking agreements are usually made orally and seldom in writing.  Since loan-sharking is illegal and excessive interest is charged, a written loan agreement spelling out the terms of the loan and interest rate would be evidence of illegality. Even if a written document exists, it would be kept by the loan shark.  The Applicant’s evidence that he had signed two copies of the loan agreement containing the full terms of the loan including interest rate and was given a copy which he could not find now is implausible in the context of such an illegal transaction. 

9.  He also gave a different account of what happened during the February 2020 incident when he met two of the moneylender’s henchmen.  In his NCF, he said “I was roughed up immediately”, but in his testimony he at first said “they stopped me and assaulted me” but then he changed and said “they stopped me and wanted to assault me.  But before the assault, I [ran] away.” 

10.  The Applicant also said many other things in his testimony which had not been mentioned in his NCF or ROI.  His explanation was that he was not given time to say all the things he wanted and was told to hurry up when preparing the NCF or during the screening interview.  The Board considered his testimony plainly incredible.  He prepared his NCF in his own time and he signed an acknowledgement at the end of the NCF that the information he provided is complete.  His ROI was taken in the presence of his duty lawyer and he signed a confirmation that the interpreter had finished reading the ROI to him and he did not want to make any further addition, deletion or amendment. Not only that, his duty lawyer also signed a confirmation that he had no comment about the record. 

11.  In view of the multiple and significant inconsistencies and implausibility, the Board found the Applicant is not a credible and reliable witness.  It found there were serious credibility problems in the Applicant’s evidence such that it was unwilling to attach any credence to his evidence.  It only accepted his evidence about his personal background.

12.  On the basis of authoritative and credible country of origin information (“COI”), the Board found the government of Vietnam is willing and able to provide effective protection to its citizens.  It also found that the Applicant can reasonably live without fear of the alleged harms and undue hardship if he relocates to other areas such as Ho Chi Minh City, Ha Noi and Nha Trang.

13.  Applying the law applicable to non-refoulement protection to the above facts, the Board found there is no real risk that the Applicant will experience harm, or persecution or at risk of violation of right to his life if he were removed to Vietnam and that any risk may be mitigated or avoided by seeking state protection and internal relocation.  It therefore came to the conclusion that the Applicant had failed to establish his entitlement to protection under any of the four applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

Grounds for judicial review

14.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  However, he had advanced the following three grounds in his supporting affirmation:

15.  First, he submits that if returned to Vietnam, his life will be seriously threatened.  He will be tortured, beaten or even killed because the moneylender and his underlings are cruel and violent.  He also submits that they disregard the law and are willing to kill to satisfy their anger and ferocity.  This is a direct challenge of the Board’s finding of fact, in the first place, there is no real risk that the Applicant will experience harm, persecution or violation of right to life if he were removed to Vietnam; and in the alternative that state protection and internal relocation are available to mitigate or avoid the risk of harm.  It is not open to the court in an application for judicial review to intervene in such finding of fact by the Board.

16.  Second, the Applicant disagrees with the Director’s suggestion that he could relocate to live in other locations to avoid the moneylender because he could not find employment in the new location owing to his health, personality and the disadvantage he would suffer in the labour market.  For his benefit, the Court assumes that this complaint is directed at the Board.  The Board had considered the issue of internal relocation in depth in pages 45 to 49 of its Decision and referred the Applicant to country information of a number of cities to where he may safely relocate, including Ho Chi Minh City, Ha Noi and Nha Trang.  The issue of his health, personality and his lack of competitiveness in the labour market had not been raised by the Applicant in his testimony.  It is not open to the Applicant to advance these new issues which did not form part of his claim. 

17.  Lastly, the Applicant claims that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is possible for the moneylender and his underlings to find him out and harm him.  The Board had also considered this very issue of risk of harm from the moneylender and his underlings locating the Applicant outside his home area.  In paragraph 154 of its Decision, the Board found there was no objective, independent and reliable evidence that the moneylender and his underlings are able to locate the Applicant within the mass population in the three cities or anywhere in Vietnam.  This ground is a challenge of the Board’s finding of fact, which is impermissible. 

18.  There is no substance in any of the grounds advanced.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision. 

Overall scrutiny

19.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and COI.  Except for his personal background, the Board rejected almost the entirety of his case.  Practically, the Applicant has no factual basis to support his claim for protection under any of the applicable grounds under the USM.  Applying the law applicable to non-refoulement protection to the facts it found and the COI, the Board was not satisfied that the Applicant had proved his entitlement to protection under any of the applicable grounds under the USM. 

20.  The Board’s finding are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

21.  For the above reasons, the Applicant’s leave application is refused.

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