HOANG VAN DUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2049/2024

[2025] HKCFI 150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2049 of 2024

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 7 November 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 4 September 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 March 2024 (the “Notice”).

Background

2.  The Applicant is a Vietnamese national. He entered Hong Kong illegally and was arrested by the police on 3 December 2023. On 27 February 2024, he made an application for non-refoulement protection. In due course, his non-refoulement claim was assessed on all four applicable grounds under the USM, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the torture claim form and the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interviews in the presence of his lawyer. In gist, he claims that he will be harmed or killed by three moneylenders, if returned to Vietnam due to his inability to repay his loans.

4.  The Applicant, now aged 41, was born in Hai Phong, Vietnam. He is married and has two daughters. His parents and two brothers are living in Vietnam. He had received 12 years of formal education and had worked as a craft worker for seven years and then operated his fruit stall for two years.

5.  In early 2018, he borrowed 130 Vietnamese Dong (“VND”) from a local well-known loan shark at a monthly interest rate of 10 million VND to start a new fruit stall business. Due to his lack of experience, he suffered serious loss. Through his friends’ introduction, he borrowed another loan of 200 million VND from a second loan shark in mid-2018 at a monthly interest rate of 18 million VND to continue his business. In early 2019, he borrowed 300 million VND from a third loan shark at a monthly interest of 25 million VND. All his three loan sharks have triad background and are powerful people. The loan agreements were made orally with no fixed date for repayment of the principal, but payment of interest.

6.  Since early 2020, the Applicant was unable to pay interest. The loan sharks with two or three of their associates visited the Applicant’s home two or three times every month to demand repayment. They threatened to harm or kill him if he failed to repay. They also harassed him on the telephone. But none of them inflicted any physical harm on him or his family members.

7.  Out of fear for his safety, the Applicant moved to a separate house in the same district and changed his telephone number to avoid the loan sharks. The loan sharks and their associates continued visiting his home but they never harmed his family. The Applicant does not think the police would help him and does not consider he could relocate within Vietnam because he may not transfer his household registration to other cities and that his daughters may not obtain education in other parts of Vietnam. On 27 November 2023, he left Vietnam for Hong Kong.

The finding of the Board

8.  The Board assessed the Applicant’s claim on the basis of the case as he asserted, but found he had not made out his case on the claim on all applicable grounds.

9.  In respect of Torture Risk ground, the Board considered there was nothing out of the ordinary for loan sharks to demand repayment of outstanding loan and interest. It found the loan sharks had no serious intention to harm him or kill him as they never physically harmed the Applicant or his family while they could locate him and they never troubled him while he was hiding in the separate lodging. Besides, there is no evidence that the loan sharks were acting in an official capacity or that the feared ill-treatment was inflicted or instigated by or with the consent or acquiescence of a public official or other person acting in an official capacity.

10.  On the basis of authoritative and credible country of origin information (“COI”), the Board found despite certain shortcomings in the country conditions, reasonable state protection is available in Vietnam. There is no foreseeable, real, personal and present risk of the Applicant being subject to torture as defined by section 37U(1) of the Immigration Ordinance.

11.  In respect of BOR 3 Risk ground, for the same reasons, the Board found the past treatment falls substantially short of the minimum level of severity required to support a claim for protection against future risk under this ground.

12.  In respect of Persecution Risk ground, the Board found that the Applicant’s dispute with the loan sharks are private disputes and the feared ill-treatment was not on account of any of the five reasons protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

13.  In respect of BOR 2 Risk ground, the Board found the Applicant had failed to demonstrate that he will face a real risk of being deprived of his right to life, if returned to Vietnam.

14.  In view of the above findings it was not be necessary for the Board to consider internal relocation. Nevertheless the Board found the option available because, according to the COI, the requirement of obtaining approval for changing household registration had been removed.

15.  For the above reasons, the Board dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

16.  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[5].

Grounds for judicial review

17.  The Applicant did not advance any grounds of review in his Form 86. In his supporting affirmation, he only annexed a copy of the Decision. At the hearing, after the above legal principles had been explained to him, he confirmed that he had no complaints about procedural unfairness or irrationality in the Board’s Decision and that he would leave it to the Court to look for errors of law in the Decision on his behalf.

Overall scrutiny

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds 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 assessed the Applicant’s claim on the basis of his case as asserted by him. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of law, they are absolutely correct. Insofar as they are finding of facts, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

19.  Accordingly, the 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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