PHAM NGOC HOANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 758/2022

[2026] HKCFI 3365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 758 of 2022

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 the oral submissions of 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 15 August 2022 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 1 June 2022 (the “Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 August 2021 (the “Notice”) refusing his application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is a Vietnamese national, now aged 39. He had received 12 years’ education and had about 10 years’ working experience as a general worker in Vietnam and Taiwan. He was arrested by the police on 18 September 2020 and referred to the Immigration Department. He claimed to have entered Mainland China from Vietnam on 19 August 2020 and sneaked into Hong Kong on 25 August 2020. He made a claim for non-refoulement protection by written signification on 6 October 2020. His 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, if returned to Vietnam, he will be harmed or killed by a moneylender for being unable to repay the loan he had borrowed from the moneylender.

3.  The Applicant’s claim was rejected by the Director’s Notice. He appealed to the Board. Having studied the papers, the Board considered an oral hearing necessary and scheduled a hearing on 12 April 2022 which was adjourned to 26 April 2022 because of the Covid pandemic. Notice of the adjournment and re-scheduled hearing were duly served on the Applicant on his last known address. The notices were not returned to the secretariat of the Board through the post. But the Applicant did not attend the hearing, nor could he be reached on the phone. A notice dated 26 April 2022 was issued to him pursuant to section 15 of Schedule 1A of the Immigration Ordinance and paragraph 11 of the Petition Guide requesting for a written explanation for his failure to attend the hearing within 7 days and informing him of the Board’s intention to determine his appeal in his absence if the Board had not received his written explanation or supporting documentary evidence or was not satisfied with his explanation. The Applicant did not respond. Accordingly, the Board made the Decision in his absence.   

4.  The Applicant’s case as advanced by him in his non-refoulement claim form and record of his screening interview is as follows. In May 2017, he borrowed 2,000 million Vietnamese Dongs (“Dongs”) from the moneylender for a term of one year at a monthly interest of 20 million Dongs for the purpose of setting up his aquaculture farm. He was able to pay monthly interest until September 2017 when all his cultivated seafood died because of contamination. Upon his request, the moneylender gave him two months’ extension of time to pay the interest. In December 2017, the moneylender and four underlings went to his home to collect payment. When the Applicant told them that he could not pay, they threatened to vandalise his home and beat him, if he could not pay as soon as possible. After about half a month, the moneylender and six underlings came to his home to demand payment. As he could not pay, they beat him with poles for about twenty minutes and vandalized his home with dirt. They threatened to kill him unless he could pay as soon as possible. Then they left. The Applicant went to a nearby clinic for treatment. It took him about half a month to recover.

5.  Five days later, the Applicant relocated to Ho Chi Minh City where he worked in a coffee plantation. Nothing eventful happened until more than two and half years later when he was told by his father that the moneylender had found out he was in Ho Chi Minh City. Then, on his friend’s advice, he sneaked into Hong Kong to seek protection in August 2020.

6.  He did not consider state protection available and had not reported the incident to the police. This is because he thought the police would not help him since his problem was a private matter. Besides, he was afraid of revenge by the moneylender, if he reported. He also did not consider internal relocation feasible because he believed his moneylender could easily locate him wherever he goes.

The Board’s finding

7.  The Board considered the Applicant’s account was made up of bare assertions only without objective proof. It considered his account implausible or unreliable. He allegedly came to Hong Kong on his friend’s advice to seek protection. However, he did not make any claim when he arrived in Hong Kong on 25 August 2020, but waited until 6 October 2020 after he was arrested. It considered the delay cast doubt on the veracity of his claim.

8.  On his account, the Applicant was not threatened or assaulted on his first default in payment of interest and was given two months’ extension of time to pay. He was only threatened on his second default and then assaulted on his third default. He recovered in half a month. The ill-treatment or injuries could hardly “constitute severe pain and physical or mental suffering reaching the minimum level of severity on the duration of treatment, its physical or mental effects”.

9.  On the basis of authoritative and credible country of origin information (“COI”), the Board could not accept his argument that state protection is not available. It did not accept the moneylender, if he ever existed, is still looking for him all over Vietnam. Even if the moneylender should have huge resources and manpower and the willingness to expend the same to search for him, looking for him would be like searching for a needle in a haystack. The Board considered there is no substantial risk that the Applicant will be found and be subjected to harm or ill-treatment. Indeed, he had stayed in Ho Chi Minh City without problem for more than two and half years before leaving for Hong Kong. The Board did not consider it unduly harsh for him to relocate to other cities in Vietnam and rejected his claim that internal relocation is infeasible.

10.  On the whole, the Board considered the number and nature of inconsistencies and implausibility in his evidence were so serious as to undermine the reliability of his evidence. It found the Applicant dishonest and unreliable. It was not convinced that he came to Hong Kong because of the alleged threat by the moneylender, or that he had suffered any physical or mental pain and suffering as he had alleged, or that he would be subjected to substantial risk of harm, if returned to Vietnam. Applying the law applicable to non-refoulement protection to the facts it found, the Board was not satisfied that he had proved his entitlement to protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”). Hence, it dismissed his appeal against the Director’s decision in the 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[2].

Grounds for judicial review

12.  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 three grounds in his Form 86:

13.  First, he submits that if returned to Vietnam, his life will be seriously threatened. He will be tortured, beaten or even killed because the moneylender and his underlings in Vietnam are cruel and violent. They disregard the law and are willing to kill to satisfy their anger and ferocity. This is a direct challenge of the Board’s finding of fact that in the first place there is no real risk that the Applicant will experience harm, persecution or violation of right to life if he were removed to Vietnam; and in the alternative that state protection and internal relocation are available to mitigate or avoid the risk of harm. It is not open to the court in an application for judicial review to intervene in such finding of fact by the Board.

14.  Second, the Applicant disagrees with the Director’s suggestion that he could relocate to live in other locations to avoid the moneylender. For his benefit, the Court assumes that this complaint is directed at the Board. He submits internal relocation is not feasible because he could not find employment in the new location by reason of his health, personality and that the disadvantage he would suffer in the labour market.

15.  The Board had considered the issue of internal relocation in depth in paragraphs 70 to 75 of its Decision and referred the Applicant to country information of a number of cities to where he may safely relocate, including Ho Chi Minh City, Hanoi, Can Tho and Haiphong. The Board found, being an able-bodied young man in his thirties, it would not be unreasonable or unduly harsh for him to relocate. The issue of his health, personality and his competitiveness in the labour market had not been raised by the Applicant in his testimony and he had not submitted any such evidence. In fact, on the Applicant’s own evidence, he had lived in Ho Chi Minh City and worked in a coffee plantation for more than two and half years before coming to Hong Kong. It is not open to the Applicant to advance these new issues which did not form part of his claim.

16.  Lastly, the Applicant claims that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is possible for the moneylender and his underlings to find him out and harm him. First, this is an assertion based on the Applicant’s own speculation without any supporting evidence. Second, the Board had considered this very issue of risk of harm from the moneylender and his underlings when it considered availability of state protection in paragraphs 50 to 58 of the Decision and again in paragraph 75 when it found even if the moneylender had the resources, the manpower and the willingness to spend those resources to look for the Applicant, the chance that he will be able to find the Applicant would be very slim. This ground is also a direct challenge of the finding of fact of the Board, which is impermissible.

17.  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 and irrationality in the Decision.

Overall scrutiny

18.  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. Because of the multiple contradictions and implausibility in his evidence, the Board found him incredible. It did not accept that he came to Hong Kong because of the alleged threat by the moneylender, or that he had suffered any physical or mental pain and suffering as he had alleged, or that he would be subjected to substantial risk of harm, if returned to Vietnam. It found he had failed to establish the factual basis of his claim to entitle him to protection under any of the applicable grounds under the USM. 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

19.  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