LE DUC THIEN alias LAI VAN MINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2134/2020

[2025] HKCFI 329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2134 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 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 Le Duc Thien alias Lai Van Minh (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 9 October 2020 (“Board’s Decision”) when the Board affirmed the decisions of the Director of Immigration (“Director”) dated 7 November 2014 (“2014 DOI Decision”) and 12 May 2017 (“2017 DOI Decision”) (together “DOI Decisions”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Vietnamese. He was born on 18 January 1979 in Hai Phong, Vietnam. He had stayed in Hong Kong from 1989 to 1992 as Vietnamese boat people. He completed his higher secondary education in 1996 after his return to Vietnam in 1992. He worked as a technician in the Vietnamese Navy before running his own hostel business (“Hostel”) in 2004 with his maternal uncle as the licensee for the Hostel.

The Claim

3.  The Applicant claimed that on the advice of a Vice Chief Police Captain (“VCPC”) of Anlao Commune of Hai Phong City, he took out a loan of VND 100 million from various loan sharks in late 2004 to improve the Hostel to provide extra services including massage services. The Applicant paid VND 5 million each month to VCPC for him to pay all levels of police officers and the triad societies to secure the Applicant’s business. The Applicant paid VCPC 3 consecutive months of payment but could afford no further.

4.  A few months after the Applicant stopped paying VCPC, a group of police officers raid the Hostel and accused the Applicant of offering prostitution services in the Hostel. They asked the Applicant to pay bribes of VND 40 million or he would be arrested.

5.  The Applicant tried to take out loans to satisfy the police demand, but he was unsuccessful. The Applicant decided to sell ecstasy for a gang to make money. He contacted a triad member and started selling ecstasy in around 2006. The triad gangsters provided ecstasy worth about VND 40 to 50 million to the Applicant for him to sell to his customers. The Applicant did not need to pay for the drugs in advance.

6.  The Applicant arranged to sell the ecstasy to his customer (“LUC”). LUC took the ecstasy but alleged that the ecstasy was fake. LUC did not pay for the ecstasy nor return the drugs to the Applicant. His men got into a fight with the Applicant. The Applicant used a small knife to defend himself and accidentally wounded one of LUC’s mem. The Applicant escaped from the fight and fled to Ha Long City, where he stayed for about 3 to 6 days.

7.  While staying in Ha Long City, the Applicant learnt from his family that both the Vietnamese police and the triad gangsters were looking for him. The police read out to the Applicant’s family a warrant of arrest against the Applicant and the triad gangsters came to chase for payment for the ecstasy. The triad gangster caused damage to the Applicant’s house and threatened to kill the Applicant.

8.  With the help of his family, the Applicant went to Mong Cai City where he stayed peacefully for about a day.

9.  In around April 2006, the Applicant departed Vietnam through a border checkpoint. He claimed that he could not exit Vietnam through the proper channel and his agent had to pay bribes to the officer guarding the border checkpoint for him to leave Vietnam. The Applicant traveled to Guangxi, Mainland China before entering Hong Kong illegally via Shenzhen.

10.  When the Applicant was in Hong Kong, he learned that totally 2 warrants were issued against him by the Vietnamese authorities in relation to the charge against him for providing prostitution services.

11.  The Applicant claimed that if he were to be returned to Vietnam, he would be arrested by the Vietnamese police for the false accusation of providing prostitution services in the Hostel and he would also be harmed or killed by a group of triad gangsters as he failed to pay them for the ecstasy supplied to him for sale.

Procedural history

12.  The Applicant arrived in Hong Kong illegally and was arrested on 2 March 2007. On 9 December 2007, the Applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, the CAT Claim was taken to be a non-refoulement claim (“NRC”) and was assessed under the USM.

13.  In the 2014 Decision, the Director considered the NRC based on the following grounds under the USM, namely:

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

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 3”); and

(c)  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”).

14.  The Director refused the NRC based on the above grounds by the 2014 Decision.

15.  By a letter dated 25 April 2017, the Director invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under BOR, including right to life under Article 2 of section 8 of BOR (“BOR 2 risk”).

16.  The Applicant did not submit additional materials or facts on any other absolute and non-derogable rights under BOR, particularly the BOR 2 risk. The Director proceeded to assess whether the Applicant would be subject to any risk of his absolute and non-derogable rights under BOR being violated upon his return to Vietnam (including right to life under BOR 2), in the light of the assessment on the proscribed risks set out in the 2014 DOI Decision (“BOR 2 Claim”). The NFC and the BOR 2 Claim together formed the Claim.

17.  By the 2017 Decision, the Director refused the BOR 2 Claim.

18.  The Applicant filed an appeal/petition to the Board on 20 November 2014 against the 2014 DOI Decision (“Appeal”). Before the Appeal was determined, the Director issued the 2017 DOI Decision. The Board considered all the DOI Decisions in the Appeal. By the Board’s Decision, the Board affirmed the DOI Decisions. The Board rejected and dismissed the Appeal.

19.  On 27 October 2020, 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 the Director and the Board as the proposed respondents.

20.  On 19 September 2024, the Applicant wrote a letter to the court (“Letter”) applying to withdraw this intended judicial review application and stating that he wanted to go back to Vietnam (“Withdrawal Application”).

21.  When the Applicant filed the Form 86, he expressly stated in writing that he did not request an oral hearing for his application for leave for judicial review. I proceeded to deal with the Applicant’s application for leave for judicial review and the Withdrawal Application by paper disposal.

The DOI Decisions

22.  For reasons stated in §§24-27 of the 2014 DOI Decision, the Director did not accept that the Applicant had given a truthful account as to the incidents happened to him.

23.  The Director further held that even if the Applicant’s evidence were accepted to be true, future risk of harm upon his return to Vietnam was assessed to be low as the Applicant had never been hurt by the Vietnamese police or the triad gangsters. The low intensity and frequency of past ill-treatment was indicative of low future risk of harm.

24.  The Applicant claimed that he was framed by the police in Anlao Commune with false charge of providing prostitution services in the Hostel. The Director was of the view that the misbehaviour of police officers in a particular police station or in a police district did not and could not represent the official stance of the National Vietnamese Police Force. Even if the Applicant was arrested for the false charge after returning to Vietnam, there was no indication to suggest that he would be deprived of justice to face a fair trial.

25.  The misconduct of VCPC and the police officers in Anlao Commune of extorting money from the Applicant or the illegal acts of the triad gangsters was obviously not carried out for any purpose that was related to the policy or interest of the state of Vietnam. There were no substantial grounds to believe that further action (if any) by the police or triad gangsters in Anlao Commune would be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity.

26.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

27.  The Applicant’s problems in Vietnam originated from his personal conflict with VCPC in Anloa Commune of Hai Phong City and the triad gangsters in Hai Phong City. They had nothing to do with any of the reasons referred to in the Refugees Convention for claiming protection against the persecution risk.

28.  The Director further found that internal relocation would be viable to the Applicant. If the Applicant moved to Hanoi or Ho Chi Minh City, VCPC and the triad gangsters would have great difficulties in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

29.  After considering the BOR 2 Claim, the Director considered that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR (including right to life under BOR 2) being violated upon his return to Vietnam.

30.  For the reasons set out in the DOI Decisions, the Director rejected the Claim.

The Board’s Decision

31.  In the Appeal, the Applicant added an additional head of concern, namely, a risk of harm from the moneylender. The Board conducted 5 hearings from November 2015 to September 2020 for the Appeal.

32.  For reasons stated in §§50-72 of the Board’s Decision, the Board did not find the Applicant to be at risk of harm from the Vietnamese government on account of his family background.

33.  For reasons stated in §§79-84 of the Board’s Decision, the Board found that the Applicant’s account about the management of the Hostel did not support his contention that he was the actual operator of the business.

34.  The Board was of the view that if the Vietnamese police had laid false charges for providing prostitution services in the Hostel against the Applicant and the Applicant was innocent, the Applicant stood a fair chance to be cleared of the allegations against him, like the licensee of the Hostel, his maternal uncle. (§§88-89 of the Board’s Decision)

35.  Even if the Applicant were wrongfully convicted on the charge related to the prostitution activities, the Board found that he would not face any serious consequences from the conviction. The Board arrived at this conclusion after a careful examination of the relevant COI. (§§91-94 of the Board’s Decision)

36.  The Board was prepared to accept that the Applicant engaged in drug trafficking in Vietnam but found that he was not telling the truth to the Board in relation to his reasons for engaging in this illegal activity (§96 of the Board’s Decision). The Board found that the people who supplied dangerous drugs to the Applicant were unlikely to be able to find him when he returned to Vietnam after so many years. The Board found that there was no evidence to suggest that the suppliers had any connection with the Vietnamese authorities.

37.  The Board found that reasonable state protection would be available to the Applicant and that internal relocation would be viable for the Applicant to avoid the triad gangsters chasing after him for the drug money. The Applicant could also seek assistance from his family, if necessary, for internal relocation.

38.  For the added concern of risk from the moneylenders, the Board was of the view that the Applicant’s concern was not event related fear as there was no evidence of the moneylenders causing trouble to him or his parents. Furthermore, reasonable state protection was available and internal relocation was viable to the Applicant should the risk of such harm arose. (§§103-104 of the Board’s Decision)

39.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

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

41.  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.”

42.  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

43.  In the Form 86, the Applicant did not put forward any grounds for his intended judicial review.

44.  In the Supporting Affirmation, the Applicant only stated that:

“To Judicial Review against the Decision dated 9^th October 2020 from Torture Claims Appeal Board. Am I refouled to Vietnam, I will be faced a genuine and substantial risk of being subject to harmful by local authorities or even killed by the drug trafficking gang. Attached the Decision dated 9^th October 2020 from Torture Claims Appeal Board, marked exhibit “A” total 30 pages.

I make this affirmation in support of Form 86 filed on this 27 October 2020. The facts deposed to herein are true to the best of my knowledge, information and belief save where otherwise stated.”

45.  He then exhibited a copy of the Board’s Decision to the Supporting Affirmation without other supporting documents.

46.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decisions, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

47.  Having rigorously examined the Board’s Decision and the DOI Decisions with anxious scrutiny, I am 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 high standards of fairness.

48.  The Applicant’s anticipated risk of harm could not have been arisen on account of any of the grounds referred to in the Refugees Convention and the Board found that the evidence did not suggest that the Applicant would be persecuted by his government or the police on account of his family background or for the outstanding warrants against him. (§§109-110 of the Board’s Decision) The Board did not found the Applicant to be at risk in Vietnam of torture (as defined in section 37U of the Ordinance) or ill-treatments in violation of BOR 3 or deprivation of life in violation of BOR 2. Reasonable state protection and internal relocation would also lower and negate such risks, if any. (§§113-121 of the Board’s Decision)

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 four applicable grounds under the USM. These are findings of fact which are 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. 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.

The Withdrawal Application

50.  The Applicant subsequently made the Withdrawal Application by the Letter stating that he wanted to withdraw his application because he wanted to return to Vietnam.

51.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

52.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

53.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

54.  In the premise and having considered the Board’s Decision and the DOI Decisions 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