NGUYEN VAN THANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2076/2023

[2025] HKCFI 2698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2076 of 2023

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Nguyen Van Thanh (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 17 November 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 June 2023 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Vietnamese born on 18 January 1981 in An Duong, Vietnam.  He had received 9 years of education.  He had 25 years working experience.  From 2016 to 2020, he operated his own shoes factory (“Business”).

3.  The Applicant claimed that in 2016, he borrowed Vietnamese Dong (“VND”) 2,600 million (“Bank Loan”) from VP Bank (“Bank”) to start the Business.  Every month he had to pay about VND 70 million as interest and part repayment of principal of the Bank Loan to the Bank.  He charged 3 cars, 3 houses and 3 pieces of land as securities (“Securities”) to the Bank.

4.  After a few months, he borrowed another VND 200 million (“2^nd Loan”) from a moneylender (“Moneylender”) to expand the Business.  Every month he had to pay VND 30 million as interest for the 2^nd Loan to the Moneylender.  No security was provided for the 2^nd Loan.  The Applicant said that he had subsequently borrowed further sums from the Moneylender but he could not remember details of these subsequent borrowings.

5.  The Bank Loan and the loans from the Moneylender together are referred as “Loans” hereinafter.  The Bank and the Moneylender together are referred as “Creditors”.

6.  The Business failed and was closed in 2020.  The Applicant was unable to make any payment to the Creditors since early 2020.

7.  In mid-2020, the Bank sent 6 to 7 debt collectors to the Applicant’s home to chase for repayment.  They told the Applicant that if he still failed to repay the Bank Loan, the Bank would forfeit the Securities.  The Applicant asked for time to repay and they agreed.

8.  As the Applicant was unable to repay all outstanding interest and principal of the Bank Loan, the Bank sent debt collectors to the Applicant’s home to chase for repayment everyday.  They yelled outside his home and threatened to kill the Applicant if he still failed to repay.

9.  At the end of 2022, the Bank’s staff negotiated with the Applicant.  The Bank agreed to allow until end of February 2023 for the Applicant to repay but still sent debt collectors to the Applicant’s home to chase for repayment everyday.

10.  The Applicant confirmed that the Bank had not enforced against the Securities. 

11.  In mid-2020, the Moneylender also came with an underling to chase for repayment of the loans borrowed from the Moneylender.  The Applicant asked for time to which the Moneylender agreed but the Moneylender still hit the Applicant’s face several times.

12.  In early 2021, the Moneylender and a few underlings came to the Applicant’s house.  They yelled at the Applicant’s family members and vandalized his house.  The Moneylender hit the Applicant at his face and pointed a gun at the Applicant’s head threatening to kill him.  The Applicant begged for more time to which the Moneylender agreed but warned that if the Applicant still failed to repay by the end of February 2023, he would kill the Applicant without hesitation.

13.  From early 2021 to February 2023, the Moneylender sent his underlings to keep watch on the Applicant everyday.  They threatened to kill the Applicant.

14.  In early 2021, the Applicant went to Ho Chi Minh City for 2 months to avoid the Creditors.  He received a phone call warning him not to try to run away if he did not want to be harmed.  The Applicant believed that the call was from one of the Creditors.  He then returned home.  The Applicant said that he had also met the Creditors’ men in Ho Chi Minh City.  They also asked him to go back home.

15.  In February 2023, as he was unable to pay the Loans and feared that the men sent by the Creditors would seriously harm or even kill him, he decided to come to Hong Kong to seek protection. 

16.  On 28 February 2023, the Applicant went to hide at his friend’s home in Hai Phong and departed Vietnam on 13 March 2023 for Mainland China.  He sneaked from the Mainland to Hong Kong on 17 March 2023.  He was arrested by the Hong Kong police on 20 March 2023.

17.  The Applicant said that the Bank had commenced court proceedings against him in 2022 (“Court Proceedings”).  After he came to Hong Kong, he had no contact with his family in Vietnam and did not know the development of the Court Proceedings.

18.  The Applicant claimed that the Creditors would harm or even kill him if he were returned to Vietnam because he was unable to repay the Loans.

19.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention” and “persecution risk”).

20.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

21.  On 21 November 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named both the Board and the Director as the proposed respondents.

Legal principles applicable to judicial review

22.  In a judicial review, the court does not step into the shoes of the decision makers.

23.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: 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.”

24.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

25.  In the Form 86, the Applicant raised the following grounds for the intended judicial review:

(1)  the DOI Decision and the Board’s Decision were unfair and not reasonable;

(2)  the Director failed to give proper weight to the presence of state acquiescence;

(3)  the Board acted unreasonably and was procedurally unfair in placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account;

(4)  the Director failed to consider or give enough weight to COI supporting the Applicant’s case that the police in his country would not be able to protect him;

(5)  the Board was procedurally improper and/or unfair when assessing his evidence and had unreasonably required him to respond to questions that he was not in a position to offer any response;

(6)  this was a clear case of unfair attitude shown by the Director.  The corruption and incompetency of the administration in his country was still a very serious problem.  The Director failed to attain the high standard of fairness required by the Wednesbury test; and

(7)  the Board’s ruling to dismiss the Appeal was irrational.

26.  In the Supporting Affirmation, the Applicant only exhibited the Board’s Decision but no other supporting documents.  He also did not state any grounds for his intended judicial review in the Supporting Affirmation.

27.  In the Form 86, the Applicant raised various complaints against the Director.  As this is an application for leave for judicial review of the Board’s Decision (not the DOI Decision) and the hearing of the Appeal before the Board was by way of rehearing, errors (if any) made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.

28.  The Applicant complained that the Board had put too much reliance on COI but failed to take his personal background and experience into account.  The Applicant provided no particulars in the Form 86 or the Supporting Affirmation to substantiate this complaint.  He attended the court hearing of 21 May 2025 (“Court Hearing”).  He was still unable to provide any particulars at the Court Hearing to substantiate his aforesaid complaint.  He only said that he had many problems and had to take care of old aged parents and minor children.

29.  In §§5-42 of the Board’s Decision, the Board set out the Applicant’s case and evidence which included his personal background and experience.  No doubt, the Board had taken into account the Applicant’s personal background and experience when considering the Appeal.  Without particulars and specifics, I do not see that this complaint of the Applicant is reasonably arguable in his intended judicial review.

30.  The Applicant further complained that the Board was procedurally improper and/or unfair when assessing his evidence and had unreasonably required him to respond to inappropriate questions at the hearing before the Board.  Again, the Applicant provided no particulars or specifics in the Form 86 or the Supporting Affirmation to substantiate his aforesaid complaint.  At the Court Hearing, the Applicant said that he could not remember what inappropriate questions had been put to him by the Board at the hearing for the Appeal. 

31.  In §§63-73 of the Board’s Decision, the Board analyzed the evidence provided by the Applicant to the Director and to the Board.  The Board found the Applicant’s evidence unreasonable and with significant inconsistencies. The Board rejected the Applicant’s evidence and his entire case.  This was the Board’s findings of fact.  

32.  The Applicant was unable to identify (whether in the Form 86 or the Supporting Affirmation or at the Court Hearing) any error of law, procedural unfairness or irrationality in the Board’s analysis of his evidence or the aforesaid finding of the Board. 

33.  As pointed out in the Nupur Mst case (supra), assessment of evidence was primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

34.  In disputing the Board’s assessment on evidence, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality.  I find none in this case.

35.  Without particulars and specifics, such complaints of the Applicant are not reasonably arguable in his intended judicial review.

36.  The Applicant complained that the Board’s Decision was unreasonable, unfair and irrational.  He again provided no particulars or specifics to substantiate his complaints.  At the Court Hearing, the Applicant was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.  Without particulars and specifics, such complaint is again not reasonably arguable in his intended judicial review.

37.  At the Court Hearing, the Applicant said that he needed more time as he wanted to submit documents showing that he was sued by the Bank.  He said that his wife called him in March 2025 and told him that the Bank had served court documents to him at his Vietnam address and he wanted to produce these documents. 

38.  When the Applicant attended the screening interview with the Immigration officer on 29 May 2023, he said that he had no contact with his family members after leaving Vietnam in March 2023. (§7.28 of the DOI Decision)  In §51 of the Board’s Decision, the Board recorded that the Applicant confirmed to the Board at the hearing of 4 October 2023 that all his representations to the Director were correct and he had no amendment to make.  As such, the Applicant confirmed that he still had no contact with his family members as at October 2023.

39.  When the Applicant attended the Court Hearing on 21 May 2025, he was in custody of the Immigration Department.  The Applicant said that he had been detained for 8 months.  As such, he was under detention in March 2025. Assuming that the Applicant had resumed contact with his wife after October 2023, it was most unlikely that his wife might call him in March 2025 when he was under detention. 

40.  In a letter dated 19 March 2025 (“Letter”), the Applicant asked the court to give him “some long date of hearing” for his judicial review case saying that:

“I want to provide you some document. But here I don’t have now. Before I have them when I was outside. But after I come under Immigration here CIC, I loss my all Documents because I keep them in my house and I don’t have a house in HK now. If I go outside, then I bring new documents from my cuntry [sic] Vetnam [sic] and I will provide to the Court. Please sir, give me some more time so I can go out side and get some new documents and submit to the Court.”

41.  There was no mention of the Applicant’s wife calling him in the Letter which was dated 19 March 2025.

42.  If the Applicant’s wife could somehow inform the Applicant in March 2025 that the Bank had served court documents to the Applicant at his address in Vietnam, the Applicant’s wife had had more than sufficient time to send the documents to the Applicant for him to submit to the court at the Court Hearing of 21 May 2025.

43.  In any event, the Bank Loan and the Court Proceedings were part of the Applicant’s case which were known to the Board (§§70 and 78 of the Board’s Decision).  In the Board’s Decision, the Board was of the view that the Appeal would still fail even if the Applicant’s case were accepted. (§75 of the Board’s Decision)  As such, the production of documents showing the Applicant being sued by the Bank would not assist this application of the Applicant for leave for judicial review of the Board’s Decision.  I did not agree to adjourn the Court Hearing and proceeded with the same on 21 May 2025.    

44.  The Board after considering the evidence provided to the Director and the Board, found the Applicant’s evidence unreasonable and with significant inconsistencies.  The Board found the Applicant’s evidence incredible.  The Board did not accept that the Applicant had borrowed from the Creditors, being chased for repayment, assaulted or threatened.

45.  For reasons set out in §§76-78 of the Board’s Decision, the Board was of the view that even if the Applicant’s evidence were to be accepted, the Appeal would still fail.  The Board found that the Applicant had not suffered serious injuries from the alleged harm inflicted by the Creditors and the alleged ill-treatment did not attain a minimum level of severity.  The Board was of the view that the alleged acts of the Creditors did not show that they intended to cause serious harm or kill the Applicant.  They only wanted to press the Applicant to repay the Loans.  The Board assessed the risk of harm to the Applicant to be low if he were returned to Vietnam.  There was no evidence to show that government official or the Vietnamese government was involved in the alleged unlawful acts of the Creditors.

46.  The Board was of the further view that reasonable state protection was available to the Applicant and internal relocation to Da Nang or Hanoi was viable for him. (§§83-95 of the Board’s Decision)

47.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

48.  In §§96-118 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.  The Board found that the alleged ill-treatment did not attain a minimum level of severity and there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to torture referred to in section 37U(1) of the Ordinance or the BOR 3 risk.  The Board was of the view that the Applicant’s feared risk of harm had nothing to do with death penalty or genocide.  The Board found that the Applicant had failed to show that there was a real risk that he would arbitrarily be deprived of his life in violation of BOR 2 if he were returned to Vietnam.  The Board found that the Applicant’s feared risk of harm was not covered by any of the reasons stipulated in the Refugees Convention.  The Board found that the Applicant did not have a well-founded fear for the persecution risk.

49.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM.  These were findings of fact exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

50.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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