VU CONG DIEP v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 480/2021

[2025] HKCFI 5925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 480 of 2021

  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 Applicant’s submissions in open court.

1.  Leave to amend the Form 86 be granted; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 8 April 2021 for leave to apply for judicial review (the “leave application”) of the legal aid officer of the Legal Aid Department. At the hearing, when the procedural background was explained to him, he confirmed that his intention was to seek judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 21 January 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 September 2020 (the “Notice”), refusing his application for non‑refoulement protection. Hence, on its own initiative, the Court amended his Form 86 give effect to his intention.

The Applicant’s claim

2.  The Applicant is a Vietnamese national. 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 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.

The Applicant’s case

3.  The Applicant claimed that he had borrowed 1.5 billion Vietnamese Dong (“VND”) from the moneylender to start his real estate business with his friend in 2018 at a monthly interest rate of VND 25 million using the title document of his parents’ house as security. The Applicant and his friend bought some property in March 2018 when the market was vibrant. Their business got into trouble since January 2019 when property value dropped. They decided to sell the property in May 2019 and split the proceeds. His friend sold the property in July 2019 for VDN 1 billion, but gave him VDN 50 million only and disappeared. When he told the moneylender in September 2019 that he could not pay interest in time, the moneylender became furious and demanded settlement of the whole loan and outstanding interest immediately or else he would kill the Applicant. In October 2019, the moneylender and his underlings visited the Applicant, assaulted him and damaged his furniture. The Applicant was hospitalised for one month. After he was discharged from hospital, he felt he was being followed. In November 2019, he was warned by one or two of the moneylender’s underlings that he must settle the debt and not think of escaping. At the end of November, he moved to live with his paternal cousin in Mong Cai to avoid the moneylender. There he was hauled before the moneylender and assaulted until some neighbours intervened. In January 2020, he sneaked to Dong Xing in mainland China and from there he sneaked into Hong Kong.

The Board’s finding

4.  Because of multiple inconsistencies in his evidence and implausibilities in his case, the Board found the Applicant incredible and did not accept his evidence. The Applicant told the Board that his business was not registered and property transactions took place in his or his friend’s home. Hence, there was a total lack of documentary evidence about the property he had bought and sold. The Board could not accept that land transactions of the magnitude could feasibly take place without proper record and business registration as if there were no legal requirements for land transactions in Vietnam contrary to the available country of origin information (the “COI”). Further, despite his business had only bought and sold three or four properties, he could not give details of those transactions. The Board was surprised that the Applicant was mistaken about the surname of this close friend whom he had known for 12 to 13 years and with whom he operated the VDN 3 billion real estate business. It was also surprised that he did not seem concerned about his friend absconding with most of the partnership’s funds. His evidence about the duration he stayed in Mong Cai before he was discovered by his moneylender was inconsistent with his account of the events which happened there. The Board had grave doubts about the genuineness of the debt as it would be legally permissible and simpler for the moneylender to enforce the security by sizing the Applicant’s parents’ home than to enforce the loan by harming the Applicant.

5.  The Board rejected the Applicant’s claim that he faced serious risk of harm from the moneylender or his underlings. It did not accept the moneylender was in a position to cause any public official or any person able to wield the authority of the state of Vietnam to be interested or involved in any attack or ill-treatment of the Applicant. It found no evidence that the state and/or other authorities in Vietnam had perpetrated any attack and ill-treatment on the Applicant. It found no evidence that the Applicant had suffered physical and/or mental suffering of the requisite severity or would face any real risk of serious harm in the future. It was satisfied that adequate state protection is available to the Applicant and there is no evidence that the Vietnamese police is unable or unwilling to protect him. It found no evidence of persecution of the Applicant and that the moneylender’s ill-treatment inflicted on the Applicant was not on account of a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol. Applying the law applicable to non-refoulement protection, the Board found the Applicant was not entitled 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.  The Applicant had not advanced any grounds of judicial review in his Form 86 or supporting affirmation. At the hearing, after the legal principles applicable to judicial review had been explained to him, he 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.

Overall scrutiny

7.  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 the country of origin information. It assessed the Applicant’s claim on the basis of the factual case as he asserted. Even on that basis, the Board found he had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. These 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, 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

8.  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

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