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HCAL 3001/2019
[2025] HKCFI 1932
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3001 of 2019
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Nguyen Tat Thang |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative 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 11 October 20191 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 16 July 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 March 2019 (the “Notice”), refusing his non-refoulement application.
2. The only address given by the Applicant to the court is the one as stated in his Form 86, ie of Castle Peak Immigration Centre (“CIC”). The Court learned that he had been discharged from CIC, but he never informed the court of his change of address. From the Court’s enquiries with the Immigration Department, the court was informed in March 2025 that his last reported address was at Prince Edward Road West, but he had absconded since 14 March 2024.
3. The Applicant had requested for a hearing. A hearing was scheduled for him on 23 April 2025. Notice of hearing was sent to him by post on 20 March 2025 to his address at Prince Edward Road West, which is his address last known to the Court. It was not returned in the course of mail. Two attempts had been made on the afternoon before the hearing to contact him on his telephone number provided by the Immigration Department to remind him of the hearing, but the calls were not answered. He did not appear at the hearing. The Court was satisfied that it had tried its best endeavour to notify him of the hearing and that the notice of hearing had been served on him. Having considered the papers, the Decision, his grounds of application, his supporting affirmation and all the circumstances, the Court is satisfied that his leave application may be justly determined without an oral hearing.
The Background
4. The Applicant is a Vietnamese national, aged 54. He is married with one son and one daughter. He had received 12 years’ formal education and had graduated from senior high school. He had 29 years working experience as a driver and casual worker.
5. He sneaked into Hong Kong from Mainland China on 5 November 2018. On the same day, he was arrested for theft and for having entered Hong Kong illegally and held in custody. On 9 November 2018, he raised a non-refoulement claim by written signification. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 2 Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4]. His application 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
6. The Applicant claimed that in 2018, the Vietnamese government resumed land in Nam Dinh City belonging to private citizens at a low price under the pretext of town planning and resold the land at a higher price for profit. It also withheld payment of compensation. Many of his friends and neighbours suffered at the government’s arbitrary action. They complained to the government and the police, but to no avail. The Applicant had no land which had been resumed or confiscated by the government.
7. On 16 September 2018, in response to the call from civic organisations, the Applicant participated in a demonstration against the government attended by 500 people. They carried banners and shouted slogans accusing the government of abuse of power and robbing citizens of their land. The Applicant took movie of the demonstration with his mobile phone. He knew that was not allowed under the law in Vietnam. Many demonstrators who took photographs or video of the demonstration had their devices confiscated by the police. Suddenly, three plainclothes policemen approached him attempting to snatch his mobile phone. In the course of the scuffle, his mobile phone was damaged. The officers attacked him and threatened to kill him, while the demonstrators guarded him against the police. He escaped in the commotion. He suffered bruises and superficial injuries. Concerned about his safety, he immediately fled to Mong Cai.
8. He did not seek treatment in the hospital in Mong Cai for fear that he would be tracked down by the police. He recovered after 25 days. He was told by his wife that on the day following the demonstration, some police officers had been to his home looking for him. After staying in Mong Cai for a month, he sneaked into Dong Xing in China. On 5 November 2018, he sneaked into Hong Kong and was arrested and held in custody. Since then, he lost touch with his family in Vietnam.
9. In gist, the Applicant’s claim is that he believes he is wanted by the Vietnamese authority for having participated in the demonstration and fears that he will be arrested and even killed by the police, if returned to Vietnam.
The finding of the Board
10. The Board seemingly accepted the Applicant’s account of the events and assessed his claim on the basis of the case as he asserted. It accepted that the police attempted to snatch away his mobile phone. It found on the basis of those facts that the intention of the police was only to confiscate his mobile phone possibly to prevent the scene of the demonstration to be revealed but had no intention to cause the Applicant serious harm or to kill him. It found the fact that he could travel more than ten hours to Mong Cai, stay there and recover in 20 odd days without medical treatment supports the finding that he did not suffer any serious injuries and that the police had no intention to seriously harm or kill him.
11. The Board rejected the Applicant’s claim that he would not be able to access state protection against the police who attacked him because of corruption as mere speculation. It found on the basis of authoritative and credible country of origin information that the Vietnamese government had taken steps to fight corruption, improve professionalism, and to fight crime. It found there is nothing to support his belief that he would not be able to access state protection.
12. Applying the law applicable to non-refoulement protection to the facts found, the Board came to the conclusion that the Applicant had failed to prove the factual basis to support his claim for non-refoulement protection and that the risk of harm he would face on his return to Vietnam to be low. It therefore dismissed his appeal.
Legal principles applicable to judicial review
13. 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[5].
Grounds for judicial review
14. The Applicant had not advanced any grounds for review in his Form 86. In his supporting affirmation, he disagreed with the Decision of the Board and reiterated that he could not return to Vietnam because his life would be in danger. In effect, he is seeking to challenge the finding of fact by the Board, which is not permissible in an application for judicial review. In the absence of proper grounds of application, this Court could only review the Board’s Decision on the usual challenges such as errors of law, procedural unfairness and irrationality in the Decision.
Overall scrutiny
15. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.
16. The Board assessed his claim on basis of the evidence he presented to the Board. The Applicant could not have any complaint against such finding of primary facts by the Board. From those facts, it made further finding of fact that the police had no intention to seriously harm him or to kill him, that state protection will be available on his return to Vietnam and that his risk of harm is low. It gave full reasons for its finding. It rejected his claim that state protection would not be available as pure speculation and found his fear of harm and death was not well-founded. All these are finding of facts solely within the realm of the Board. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of fact and of the law. Insofar as these are finding of law, they are absolutely correct. Insofar as these are finding of facts, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law 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
17. Accordingly, the application for the leave to apply for judicial review is also refused.
Dated the 13th day of May 2025
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( Seline Sze )
for Registrar, High Court |
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 13/05/2025
Nguyen Tat Thang
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 13/05/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15812/19/4/70/V2276
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 90/19 (Formerly RBCZ 10001/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[3] 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”)
[4] 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
[5] [2018] HKCA 524 at [14(1)]
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