NGUYEN VIET TRUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2386/2019

[2025] HKCFI 354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2386 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 9 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 8 January 2025.

The applicant

3.  The applicant, aged 34, is a Vietnamese. He last entered Hong Kong illegally in November 2014 and was arrested by the Immigration Department on 5 November 2014. The applicant made a non-refoulement claim on 5 November 2014, 1 March 2018 and 29 October 2018. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”), who had triad background, because he failed to repay the loan owed to him. He also feared to face discrimination for being a Catholic in Vietnam.

4.  According to the applicant, he and his family were repatriated to Vietnam in the 1990s after they failed to seek asylum in Hong Kong. Due to their Catholic background, they encountered prejudice and harassment upon their return to Vietnam. The applicant claimed that he had faced discrimination both at school and at work. In April 2013, the applicant was involved in a traffic accident. As he was unable to settle the compensation demanded by the victim’s family, he fled to Hong Kong for the first time in late 2013. In early 2014, upon being informed by his family that a settlement had been reached with the victim’s family, the applicant returned to Vietnam voluntarily.

5.  In May 2014, the applicant borrowed money from the creditor to startup a seafood breeding business. Subsequently, a storm washed away all his harvest, causing him to suffer a great loss. He was therefore unable to make loan repayment and was beaten up by the creditor’s underlings. Although the matter was reported to the police, no action was taken by them. Fearing further harm from the creditor, the applicant left Vietnam on 28 June 2014 and eventually sneaked into Hong Kong from Mainland China in November 2014.

6.  The applicant was informed that triad members had been to his home looking for him and had threatened to kill his whole family. As a result, his parents and his brother had fled Vietnam too. The applicant was of the view that he could not seek protection from the police because they were corrupt and could easily be bribed by the creditor. He also considered internal relocation not viable due to the large network of the creditor and the religious discrimination in Vietnam.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 7 January 2019 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

a. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

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

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the claimed past ill-treatment received by the applicant failed to attain the minimum level of severity [15.1]; (ii) the behaviour of the creditor and his underlings showed that they had no real intention to seriously harm or kill the applicant [15.2]; (iii) there was insufficient evidence to show that the applicant faced religious discrimination and that in any event, there were improvements to religious freedom in Vietnam in recent years [15.3]; (iv) state protection would be available [16]-[20] and (v) internal relocation would be viable [21].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 28 June 2019, the Board conducted a hearing.

11.  The Board considered the problem faced by the applicant was purely private. Upon consideration of the country of origin information, the Board found that state protection would be available and that the Vietnamese government had taken active steps to combat corruption as well as to protect religious freedom. Given further that the applicant had never suffered any injury that attained the minimum level of severity and there was also no evidence of state involvement in the matter, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [41]-[79].

12.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 19 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked this Court to review the Board’s Decision.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI 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.”

18.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.

19.  There is no reason that the Court should interfere with the Board’s finding of the facts.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

21.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.