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

HCAL 482/2021

[2025] HKCFI 5926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 482 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.  Extension of time to apply for leave for Judicial Review be refused; 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 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 2 December 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 February 2018 (the “Notice”), refusing his application for non‑refoulement protection. The leave application was filed more than one month out of time. As the delay is not very substantial, the Court proceeds to assess the merits of his leave application for the dual purpose of determining whether to grant him extension of time to file the leave application and leave to apply for judicial review.

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 Board’s finding

3.  The Applicant’s case is that he had borrowed 700 million Vietnamese Dong (“VND”) from the moneylender to start his fish farming business in August 2013. The loan was to be repaid after one year with interest at the monthly rate of VND 70,000. After six months, his business failed because of water pollution. Since August 2014, the moneylender began to press for repayment of the loan. On 7 January 2016, five of the moneylender’s men whom he believed were triad members came to his home to demand repayment. They assaulted him and cut off one of his fingers. As they were leaving, they threatened to kill him if he would not repay. They also warned him not to report the incident to the police. Thereafter, he occasionally saw them lingering outside his home. In June 2016, he fled to Haiyang Province where he stayed in a friend’s home for three months. In October 2016, he sneaked into Hong Kong via mainland China. While he was away, he was told by his wife that the moneylender’s men had been to his home, but did not harass his family.

4.  The Applicant believes he would not be able to obtain protection from the government because the police were corrupt and he had no money to pay a bribe for their service. Besides, he had been threatened by the moneylender’s men and did not dare to make a report to the police. He does not consider internal relocation feasible because he believes the moneylender could locate him through his wide network.

5.  The Board found the injuries suffered by the Applicant were not serious. The injuries did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance and did not attain the minimum level of severity. It found the moneylender’s intention in ill-treating him was only to pressure him to repay his debt and had no intention to seriously harm or kill him. It found the Applicant’s dispute with the moneylender is a personal monetary dispute and there was no evidence that any public or government officials was involved. It also found no evidence that the Applicant’s non-derogable right to life would be at risk, if returned to Vietnam.

6.  On the basis of authoritative and credible country of origin information, the Board rejected the Applicant’s argument that state protection would not be available as his own speculation. There was no evidence that the Vietnamese authorities would not perform their duty to follow up on his complaint had he made a report or would acquiesce to the moneylender’s conduct.

7.  Applying the law applicable to non-refoulement protection, the Board found the Applicant is 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

8.  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

9.  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 his 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 or 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

10.  For the above reasons, extension of time for the Applicant to file the Form 86 is refused and his leave application is also 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

Form CALL-1