NGUYEN TIEN DUNG v. TORTURE CLAIMS APPEAL BOARD

HCAL 304/2021

[2025] HKCFI 5588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 304 OF 2021

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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Vietnam who entered Hong Kong illegally in late December 2018 and was arrested on 16 January 2019 for illegal entry and undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts and/or by the husband of the woman with whom he had had an affair.

2.  The Applicant was born and raised in Thanh Pho Ha Tinh, Vietnam. After leaving school he worked as a farmer in his home district to make his living.

3.  In February 2015 he purchased a tricycle for his transportation business in Ho Chi Minh City with the help of a loan borrowed from a local money-lender to be repaid by monthly instalments for 12 months, for which he initially managed to do from his business income.

4.  However, in July 2015 he lost his business after his tricycle had been confiscated by the authorities for lacking the necessary license for its use, and when he defaulted with his loan repayments, his creditor started to come to his home in his home district to look for him, and made threats to his parents against him, and so the Applicant was afraid to return to his home district, and stayed in Ho Chi Minh City to look for other jobs to make his living.

5.  In early 2016 he met and formed a relationship with a married woman, but one day in August 2018 when the woman’s husband discovered their affair and together with 2 other men grabbed the Applicant to a remote area and beat him violently, and before they released him, they warned him that next time if they saw him again they would kill him.

6.  Later when he heard that the woman’s husband was still looking for him in Ho Chi Minh City, and as his creditor was also after him in his home district, the Applicant felt it was no longer safe to remain in Vietnam, and so in December 2018 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 February 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 13 March 2020 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor or the woman’s husband upon his return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him or than to press him to repay his debts or of the woman’s husband to do so other than to deter him from seeing the man’s wife, that in any event these were private monetary or personal disputes between them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 98 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Da Nang where it would be difficult if not impossible for anyone to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 11 June 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 July 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board accepted the Applicant’s claims of fear of harm from his creditor or the woman’s husband but found no reliable evidence of any real intention of either of them to seriously harm or kill him, and that in any event these were private and personal disputes between them only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 9 March 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date, nor did he request any oral hearing for his application.

12.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 10 October 2020, the Applicant was therefore some 5 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 5 months must be considered as very substantial and inordinate, for which he explained in his affirmation that with no knowledge about English or the financial means to obtain proper legal advice that he did not know how to proceed with his application within the required period which explained for his delay, but as ignorance of the procedural rules can never be accepted as any valid justification for their non-compliance, I am not satisfied that the Applicant has provided any good or valid reason for his such serious delay.

15.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risks of harm in his claim if real are localized ones and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  Moreover, the Applicant recently on 6 October 2025 filed an affirmation requesting to withdraw his application and confirmed that it is now safe for him to return to his home country.

20.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application.

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