PHAM VAN HUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 344/2020

[2025] HKCFI 2809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 344 of 2020

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 Pham Van Hung (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 2 March 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 9 January 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Vietnamese. His background and the particulars and procedural history of the Claim are set out in the Board’s Decision, which can be viewed in the following link:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000344_2020_files/the_Board's_Decision.pdf

3.  The Applicant claimed that his creditor (“Creditor”) in Vietnam would harm or kill him if he were to return to Vietnam because he was unable to repay his debts.

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

(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”).

Legal principles applicable to judicial review

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

6.  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.”

7.  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

8.  In the Form 86 filed herein on 9 March 2020 (“Form 86”), the Applicant named the Board as the proposed respondent and interested party.  He did not put forward any ground for his intended judicial review in the Form 86.

9.  In the supporting affirmation filed on the same day (“Supporting Affirmation”), the Applicant only reiterated his claims.  He exhibited the Board’s Decision but did not put forward any ground for his intended judicial review.

10.  The Applicant failed to attend the court hearing scheduled for 29 May 2025 despite notice of hearing dated 2 May 2025 having been sent to him and not being returned.  The Applicant had also failed to respond to an earlier letter dated 3 April 2025 sent to him by the court inviting him to send submissions to the court.  In such case, I decided to proceed with this application according to papers placed before the court. 

11.  The Applicant attended the hearing before the Board and answered questions from the Board. (§§48-49 of the Board’s Decision)

12.  In §53 of the Board’s Decision, the Board analyzed the Applicant’s evidence.  The Board found the Applicant’s evidence largely inconsistent and unreliable.  The Board did not find his evidence, even to the low standard applicable, to be credible.  On totality of the evidence, the Board was not persuaded that the Applicant had been assaulted and threatened by a moneylender in his home village, or otherwise ill-treated, in Vietnam.  The Board found that the Applicant was not subjected to any ill-treatment in the past which reached the degree of severity required to establish a non-refoulement claim. (§§62-63 of the Board’s Decision)

13.  In any event, the Board found that state protection was available to (§§29, 57 and 67 of the Board’s Decision) and internal relocation to Ho Chi Minh City or Da Nang viable for (§§34, 59 and 68 of the Board’s Decision) the Applicant.

14.  In maintaining in the Supporting Affirmation that his life was still in danger if he were to return to Vietnam, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless there was error of law, procedural unfairness or irrationality on the part of the Board in making such findings.

15.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.  I find none in this case.

16.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant also did not attend the Court Hearing to substantiate his application.  He 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 the Board’s Decision was 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.

17.  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.

18.  In §§64-82 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. 

19.  The Board found the Applicant’s evidence unreliable, contradictory and incredible.  The Board was unable to place any weight on his evidence that he was assaulted and threatened by the Creditor, and that he had a genuine fear of risk of harm on his return to Vietnam.  The Board was of the view that in any event, the claimed assault and threat from the Creditor certainly did not amount to “severe pain and suffering” as contemplated in the Ordinance.  There was no evidence that the Creditor had looked for the Applicant after 1994, or had looked for him at any place other than at his home.  The Board was of the further view that the Applicant’s claimed risk of harm from the Creditor was of low intensity, and this was indicative of a low future risk if the Applicant were to return to Vietnam.

20.  The Board found that in the incidents claimed by the Applicant, the Creditor was acting in his personal and private capacity.  There was no evidence of involvement at any stage of any public official or anyone acting in an official capacity nor evidence to show that the Vietnamese authorities had been involved or had in any way instigated, or consented, or acquiesced, or failed and refused to conduct any investigation.  Reasonable state protection was readily available to the Applicant in Vietnam.  With internal relocation being available and reasonable, the Applicant’s perceived risk would be further negated. 

21.  The Board found no reasonable grounds to believe that the Applicant would be harmed by a moneylender, or otherwise ill-treated, if he was to return to Vietnam.  The Board concluded that the Applicant had failed to show that there were substantial grounds for believing that he would be in danger of being subjected to torture as defined in the Ordinance of the BOR 3 risk if he were returned to Vietnam.

22.  The Applicant was not threatened or ill-treated in the past on account of any of the grounds referred to in the Refugees Convention, ie race, religion, nationality, membership of a particular social group or political opinion (“Convention Reasons”).  The Board had found that the Applicant’s fear of harm was based on unreliable and incredible evidence.  The Board thus found that there was no real chance that the Applicant would face any risk of persecution, if he were to be refouled to Vietnam, for any of the Convention Reasons.

23.  The Board was of the view that the facts of the Applicant’s case did not give rise to any risk of violation to right to life under BOR 2.  The Board found that there was no risk of violation of right to life under BOR 2 if the Applicant were to return to Vietnam.

24.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM.  These were findings of fact 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

25.  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