KHUONG XUAN TUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 893/2020

[2025] HKCFI 4791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 893 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court

(1)  Form 86 be amended, naming only the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

(2)  The application for leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 13 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)’s decision dated 23 March 2020 (“the Board’s Decision”), confirming the Director of Immigration (“the Director”)’s decision dated 19 December 2019 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s personal background, his case and claim that his life was in danger due to threats from certain individuals and the risk of arrest by the police in Vietnam, together with the relevant immigration and procedural history, were set out in the Board’s Decision. It is not necessary to repeat them here. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall adopt the abbreviations and descriptions used by the Board below.

Discussion

3.  The Applicant is absent from the oral hearing. I proceed to consider the merits of the Leave Application based on the materials available before me (see Re Abdus Salam [2019] HKCA 1091).

4.  I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). In considering the said decision, I have reminded myself of the enhanced standard required by law to uphold the high standard of fairness in decision-making, particularly in view of the seriousness of the issues involved (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

5.  Having reviewed all the materials contained in the Hearing Bundle, which the Applicant confirmed to be accurate and complete, and after seeking clarifications from him, the Board first proceeded to make the following findings of fact:

(1)  It was clear that the Applicant’s case revolved around a “personal grudge” with Male A: the entire case arose out of an incident in which Male A and two other men left without paying after dining at the Applicant’s restaurant. The Applicant attacked and wounded Male A, and subsequently, Male A attempted to shoot him, but failed.

(2)  Male A reported the attack to the police, who subsequently began searching for the Applicant. Shortly after the assault, Male A returned to seek revenge against the Applicant. However, the Applicant was believed to have escaped and left Vietnam on the same day.

(3)  Male A had referred the matter to the police, but there was no evidence to show that he was prepared to take any further action against the Applicant thereafter.

(4)  It was reasonable and proper for the police, upon receiving Male A’s report, to search for the Applicant and to carry out an investigation. Even assuming that the Applicant would be arrested by the police upon his return to Vietnam, there was no evidence to suggest that he would be subjected to “torture”.

(5)  According to the Applicant, he did not inform the police that Male A had fired at him because he had attacked Male A himself. In any event, the Applicant believed that the police would take no action, as they were corrupt and maintained a close relationship with Male A.

(6)  Based on the COI information, although corruption and inefficiency were widespread at all levels of the police force in Vietnam, the government has undertaken reforms to combat these issues and to improve their effectiveness.

(7)  Vietnam is a vast country with a significant population size. It was pure hearsay that Male A’s father was a police officer. In any event, there was no evidence suggesting that Male A could have the resources to locate the Applicant had he stayed and lived in provinces or cities other than his own, such as Ho Chi Minh, Da Nang or Mong Cai.

6.  Based on the foregoing, the Board reached the following conclusions:

(1)  There was no evidence to suggest that the treatment received by the Applicant fell within the meaning of “torture” under section 37U (1) of the Immigration Ordinance. The Applicant failed to establish that there were substantial grounds for believing he would be subjected to torture if he were to return to Vietnam. He therefore failed his claim under this head.

(2)  The Applicant failed to demonstrate that he would be subjected to the type of ill-treatment contemplated by BOR 3. Ill-treatment must reach a minimum level of severity in order to fall within the scope of BOR 3. As there was no evidence to suggest that the Applicant had ever been ill-treated, his claim under this head failed. Furthermore, there was no evidence to support his claim of BOR 2 Risk.

(3)  The Applicant is a Vietnamese and is staying outside his country of nationality. However, his fear of ill-treatment did not fall within the definition of “persecution”, as his case was premised on a purely personal grudge having nothing to do with race, religion, nationality, membership of a particular social group or political opinion. His claim under this head therefore failed.

(4)  As the Applicant was a healthy young adult at the age of 30, with 12 years of formal education up to senior secondary school level and 11 years of working experience, he should have no difficulty living a normal life in a province or city other than his own.

7.  It was primarily for the Board to assess evidence, COI materials, risk of harm, state protection and viability of internal relocation, etc. The Applicant has completely failed to identify any valid grounds for judicial review of the Board’s findings and decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142).

8.  In his supporting affirmation, the Applicant merely expresses disagreement with the Board, reiterating that he could not return to his country. There is no complaint of error of law, procedural unfairness, or irrationality in the Board’s Decision, nor am I satisfied that any such issues exist. In the absence of any public law errors, the Court’s role in a judicial review is not to provide a further avenue of appeal (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).

Conclusion

9.  In light of the foregoing, it follows that there is no reasonably arguable ground for judicial review with a realistic prospect of success, and accordingly, no basis for the Court to intervene by way of judicial review.

10.  For these reasons, I refuse the Leave Application and make the orders set out above.

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