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HCAL 803/2022
[2026] HKCFI 3227
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 803 of 2022
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BETWEEN
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Do Van Kien |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
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:
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 22 August 2022 for 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 11 August 2022 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection (the “Notice”).
2. The Applicant had requested an oral hearing. A hearing on 18 May 2026 was scheduled for him and notice of hearing was sent to him by post to his address as stated in his Form 86 and as confirmed by the Immigration Department on 10 March 2026. The Notice has not been returned through the post. The Applicant had never informed the court of any change of address. There is nothing to suggest that he had not received the notices. A court staff attempted to contact him on his telephone number obtained from the Immigration Department on the afternoon of 15 May 2026 to remind him of the hearing. The call was not answered. Another attempt was made to contact him on the telephone he provided when filing the Form 86. The staff was informed by the telecommunication service provider that the number was not registered for service. The Applicant did not appear at the hearing. The Court is satisfied that the notice of hearing had been validly served on him and that it had done all it could to bring the hearing to his notice. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
Background
3. The Applicant is Vietnamese national, now aged 40. He surrendered to the Immigration Department on 8 December 2015 claiming to have sneaked into Hong Kong on 5 December 2015. On 8 December 2015, he raised a non-refoulement claim by written signification. Then, he withdrew his non-refoulement claim on 16 March 2017 and was repatriated to Vietnam on 2 May 2018. On 8 August 2020, he was arrested by the police. He claimed to have sneaked into Hong Kong on 7 August 2020 from Mainland China. On 2 September 2020, he made a claim for non‑refoulement protection. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), 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 Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The Applicant’s personal background, 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[5] for reference. In gist, he claims he will be harmed or killed, if returned to Vietnam, by a moneylender for being unable to repay his loan borrowed from the moneylender.
5. The Applicant’s claim as set out in his non-refoulement claim form (“NCF”) and record of screening interview (“ROI”) is as follows. He claimed that in 2007 he borrowed 1 billion Vietnamese Dongs from a moneylender for a term of one year at a monthly interest rate of 50 million Dongs to start his business selling shoes. After paying three interest instalments, he was unable to pay. One day in April 2008, the moneylender and ten of his underlings went to his home and demanded payment. They assaulted him. On the instruction of the moneylender, one of the underlings chopped him on his left leg. One day in June 2008, three of the moneylender’s underlings went to his home to demand payment. They threatened him with death. Out of fear, he hid in his wife’s maternal home in Kien Bai until 8 August 2015 when he went to work in Taiwan. While he was away, the moneylender kept looking for him. They harassed his family members, but did not injure them.
6. The Applicant returned from Taiwan. Worried about his life, he went to Mainland China on 2 December 2015 and then sneaked into Hong Kong. After raising a non-refoulement claim he withdrew it and was repatriated to Vietnam on 2 May 2018. He hid in his wife’s maternal home in Kien Bai. The moneylender kept looking for him and harassed his family member, but did not injure them. The moneylender never looked for him in Kien Bai. In August 2020, he sneaked into Hong Kong, surrendered to the Immigration Department and raised a non-refoulement claim.
7. His wife also sneaked into Hong Kong for the same reason. He had met her but did not know anything about her claim.
The finding of the Board
8. The Applicant testified before the Board. The Board found multiple and significant inconsistencies and contradictions between his evidence in his written signification, non-refoulement claim form (“NCF”) and record of screening interview (“ROI”) which cast doubt on the credibility of his case. When the contradictions were put to him, he was either unable to give satisfactory explanation or refused to answer. The Board found the Applicant’s account that a staff of the moneylender’s company would have lent one billion Dongs to the Applicant as a total stranger and without verifying his repayment ability implausible. The centrepiece of his case is that he was unable to repay his loan owing to the moneylender. But his claim is contradicted by his letter dated 16 March 2018 to the Director that he wished to withdraw his non-refoulement claim because his debt had been wholly resolved and there was no danger to his life returning to Vietnam. That letter and his voluntary repatriation conclusively rebutted his claim. The Board found the Applicant not an honest and credible witness. It rejected his evidence about the loan and the debt recovery action taken by his alleged moneylender. The Board’s primary finding is that the Applicant had failed to establish the factual basis in support of his claim.
9. The Board also went further and assessed the Applicant’s claim on the basis of his case put at the highest. It made some further necessary finding of facts based on his evidence and country of origin information. It found the injuries or ill-treatment suffered by the Applicant did not attain the minimum level of severity. It found from the nature of the injuries suffered that the moneylender had no intention. It found the risk of harm on the Applicant’s return to Vietnam is low. It found the dispute between the Applicant and the moneylender is a private dispute and the harm or risk of harm on his return to Vietnam was not on account of any of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol. Applying the law applicable to the non-refoulement protection under the USM to the evidence available, the Board found the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM.
10. Hence, it dismissed the Applicant’s appeal against the Director’s Notice.
Legal principles applicable to judicial review
11. The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].
Grounds for judicial review
12. Annexed to his Form 86 is a one and half page document titled ‘Grounds on which relief is sought’. The document raised only three grounds of application. The rest of the document is about the relief sought and a brief account of the procedural steps taken by the Applicant in pursuing his claim.
13. In his first ground, the Applicant argued that if returned to Vietnam, his life will be seriously threatened. He will be tortured, beaten or even killed because the gangsters in Vietnam are too angry and cannot control their emotions and behaviour. On the Board’s primary finding, the Applicant has not even proved the factual basis to support his claim. The issue of relocation simply does not arise.
14. In its secondary finding, the Board assumed that the Applicant had proved the factual basis of his claim, but found in paragraphs 42 to 49 that the risk of harm is low because the risk is localized as evidence by the fact that the Applicant had lived in his wife’s life maternal home in Kien Bai for nine years in complete safety without harassment from the moneylender. For that same reason, it also rejected the Applicant’s assertion about the moneylender’s nationwide social network of gangsters and clandestine connections with corrupt elements in the government and police.
15. Second, the Applicant disagreed with the Director’s suggestion that he could relocate to live in other locations to avoid the moneylender and his underlings because of his health, personality and the disadvantage he would suffer in the labour market. These arguments had not been advanced before the Board. It is not open to him to seek to review the Board’s Decision on matters which had not been advanced before the Board. In paragraph 49 of its Decision the Board found, being an able-bodied adult with his education and experience, it would not be unduly harsh or unreasonable for the Applicant to move to other areas in Vietnam to avoid the risk of harm. In fact, he had so moved to Kien Bai and lived there for nine years. This is a finding of fact which the Court may not intervene, save for errors of law, procedural unfairness or irrationality in the Decision.
16. Third, the Applicant submitted that with the nationwide social network the moneylender could locate him and harm him. This same argument had been considered and dismissed by the Board in paragraphs 42 to 48 of its Decision as analysed above. This ground is a direct challenge of the Board’s finding of fact, which is impermissible.
Overall scrutiny
17. 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, tested it against common sense and inherent probability. It identified multiple significant inconsistencies in the Applicant’s case. It considered the Applicant incredible and rejected his evidence. It found he had failed to proof the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. This is the primary basis of its decision.
18. The Board also assessed the Applicant’s claim on the basis of the case as he asserted after making some necessary finding of facts. Applying the law applicable to non-refoulement protection to those facts, it found the Applicant is also not entitled to protection under any of the applicable grounds under the USM. This is the secondary basis of the Board’s Decision.
19. The Board’s findings under both basis are mixed finding of the law and of the facts. It gave detailed reasons for its finding. On the evidence, it was open to the Board to make those findings as it did. Insofar as its finding are finding of the law, it is absolutely correct. Insofar as its finding are finding of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. 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 had 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
20. For these reasons, the leave application is refused.
Dated the 5th day of June 2026
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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 05/06/2026
Do Van Kien
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 05/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18678/21/9/30/V3039
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 936/21 (Formerly RBCZ 10766/21)
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] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000803_2022_files/the_Board's_Decision.pdf
[6] [2018] HKCA 524 at [14(1)]
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