TRAN DUC THO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 702/2025

[2026] HKCFI 2419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 702 of 2025

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 oral submissions by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 19 March 2025 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 6 January 2025 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 2 May 2024 (the “Notice”), refusing his application for non‑refoulement protection. 

The Applicant’s claim

2.  The Applicant is a Vietnamese national, now aged 36, married. His wife was the 2^nd Appellant in their appeal to the Board against the Director’s Notice, but she has chosen not to join in with his present leave application.  They have two children in Vietnam.  The Applicant and his wife’s 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 he will be harmed or killed by a moneylender for being unable to repay the loan he had borrowed from the moneylender, if returned to Vietnam.

3.  The Applicant had received 18 years’ education and had 10 years’ working experience, including as a self-employed engineer.  His case as stated in his non‑refoulement claim form (“NCF”) is that in 2019 he borrowed 150 million (ie 0.15 billion) Vietnamese Dongs (“Dongs”) from a moneylender for a term of four years at a monthly interest of 15 million Dongs.  His business began to decline in 2020 because of the Covid-19 pandemic.  By 2023, the business failed completely.  He was unable to repay the loan.  He asked for and was given three months’ extension of time to pay.  Yet, he could not pay.  In July 2023, the moneylender accused him of breaking his promise and threatened to abduct him and his wife, if he could not pay in a month.  Instead of seeking police assistance, the Applicant moved to live with his parents in Thanh Hoa in Ha Trung Province.  In September 2023, the Applicant and his wife came to Hong Kong to take a break.  While in Hong Kong, his father told him not to return to Vietnam as his moneylender had been pressuring his father to repay and threatening to kill them upon their return. The moneylender also splashed red pain on his parents’ entrance door and walks. 

The Board’s finding

4.  The Applicant testified before the Board.  He put forward an inconsistent account of his claim.  He said he borrowed 1.5 billion Dongs from the moneylender for a term of three years and he ceased business in September 2023 when he came to Hong Kong, instead of a loan of 0.15 billion Dongs for a term of four years and that his business ceased in May 2023.  He said he was threatened with violence against him and his family and that he was actually assaulted.  He introduced five other debt collecting incidents not mentioned in his NCF.  Two of those incidents occurred before he left Vietnam in which the moneylender’s men damaged his company furniture, brutally assaulted him and threatened him with death.  Three other incidents occurred after the Applicant had left Vietnam but before his screening interview before the immigration officer.  The Board found glaring contradictions between the account he depicted during the hearing before the Board and that in his NCF.  When confronted with the inconsistencies, the Applicant was unable to give any satisfactory explanation.  It was also important that the Applicant had been given the opportunity to amend his NCF before he started testifying and he told the Board that there was no need to change anything.  The Board found him not credible and his evidence wholly unreliable.  It rejected his evidence.  It found there was insufficient evidence to establish the existence of the loan, the conduct of the moneylender, the past threat, harm or ill-treatment, and alleged risk of harm or ill-treatment to the police or the authorities, and/or the alleged risk of harm or ill-treatment upon his return to Vietnam now. 

5.  Applying the law applicable to non-refoulement protection to the facts found, the Board found the Applicant had failed to establish his entitlement to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

Grounds for judicial review

6.   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 grounds in his supporting affirmation:

(1)   the Director’s and the Board’s decisions are wrong, unreasonable and unfair;

(2)   the Board failed to give proper weight to the presence of state acquiescence and that led to an unfair outcome;

(3)   the Board acted unreasonably and procedurally unfairly by placing too much reliance on country of origin information (“COI”) and failed to take his personal background into account;

(4)   the Board acted improperly and unfairly when assessing whether to accept his explanations and unreasonably required him to response to questions that he could not respond;

(5)   the Director failed to take such argument into account or give enough weight to such argument before reaching the decision; and

(6)   on the evidence, the Board should have allowed his appeal.

7.  The Applicant said that these grounds were prepared by him and he assured the Court that he could provide particulars of the grounds, if asked. These grounds are very familiar to the Court as it has seen them many times in other leave applications.  It appears that they were copied from other applications which have no bearing to the facts in the Applicant’s case.  Some of these grounds are directed at the Board, some at the Director and some at both the Board and the Director.  However, when asked for particulars, the Applicant was unable to provide any.  He just gave muddled answers revolving around the danger to his life, if returned to Vietnam.

8.  Under Ground (1), he said the Decision is wrong, unreasonable and unfair because his life will be in danger, if returned to Vietnam.  This is a direct challenge of the Board’s finding of fact that he had failed to prove the centerpiece of his case, ie the existence of the loan, the moneylender, the moneylender’s conduct and that his life would be at risk of harm from the moneylender.  This is not permissible in an application for judicial review, save for errors of law, procedural unfairness and irrationality in the Decision.   

9.  The Applicant could not provide particulars of Ground (2).  He could not even tell the Court what he meant by ‘state acquiescence’.  After the term had been explained to him, he said he had proof but had no time to make them available.  It lies ill in his mouth to say he had no time to collect the evidence as he came to Hong Kong in 2023 and did not appear before the Board until 2025.  Eventually, he admitted he had no proof and it was his belief that his moneylender had coordination with the authorities.  That belief, even if genuine, had no place in his account of events which is not proven.

10.  As for Ground (3), he was not clear what COI the Board relied on.  The essence of his argument is that the Board did not consider his personal circumstances, ie that he will be killed, if refouled.  This is also a direct challenge of the Board’s finding of fact that he had failed to prove the centerpiece of his case.

11.  The Applicant was unable to give particulars of the impropriety and unfairness or the questions which he complained the Board had unreasonably asked of him which he was in no position to answer.  Ultimately, his real complaint was that the Board did not accept his evidence.  Again, this is a direct challenge of the Board’s finding of fact which is impermissible, save for errors of law, procedural unfairness and irrationality. 

12.  Under Ground (5), he complained that the Board did not accept his evidence that the moneylender had come to his home and threaten him.  Again, this is a direct challenge of the Board’s finding of fact.

13.  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 or irrationality in the Decision sought to be reviewed.

Overall scrutiny

14.  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.  It found glaring contradictions between the Applicant’s account as stated in his NCF and his testimony before the Board.  When confronted, he was unable to explain the inconsistencies.  The Board found him incredible and rejected his evidence in its entirety.  On that basis, the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. 

15.  The Board’s findings 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 on 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

16.  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