BUI VAN HOANG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1340/2021

[2026] HKCFI 2936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1340 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 26 March 2021 be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Vietnam who had previously in November 2016 illegally entered Hong Kong and raised a non-refoulement claim for protection on the basis that if returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts but was subsequently repatriated to Vietnam in April 2018 after his claim was rejected by the Immigration Department, but less than 2 years later in November 2019 he sneaked back into Hong Kong and was arrested by police on 9 January 2020.  After he was referred to the Immigration Department for investigation, he raised another non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by another creditor over his failure to repay another loan which he borrowed after his repatriation to Vietnam in 2018.  

2.  The Applicant was born and raised in Hai Phong City, Thuy Nguyen Province, Vietnam.  After leaving school he worked in various manual labour in his home district to make his living.

3.  In 2016 he started his own fish farm business with the help of a loan borrowed from some local money-lender to be repaid within 4 months and with monthly interests payment, but due to insufficient income from his business which did not fare well, he defaulted with his loan repayment, whereupon his creditor sent men to threaten and beat him that he in November 2016 departed Vietnam for China and subsequently sneaked into Hong Kong and raised his non-refoulement claim for protection.

4.  By a decision dated 24 January 2018 the Director of Immigration (“Director”) rejected and dismissed his claim upon finding that it was a private monetary dispute without any official involvement that state protection and reasonable internal relocation would be available to the Applicant upon his return to Vietnam to negate any risk of harm from his creditor, whereupon the Applicant was in April 2018 repatriated to Vietnam.

5.  Upon returning to his home district in Vietnam, the Applicant subsequently managed to repay his debts with the help of his parents and friends, and in August 2019 he decided to invest in some farmland in his home district with the help of a loan borrowed from another money-lender and which he intended to repay after reselling the land for a profit.

6.  However, after receiving the purchase money from the Applicant, the land owner disappeared without transferring the land over to the Applicant, and when he was unable to repay his loan, his creditor then sent men to threaten him, and after being beaten by those men on several occasions and with a warning that he would be killed next time if he still failed to repay his loan, the Applicant again became fearful for his life and fled to Mong Cai, and in November 2019 he departed Vietnam for China, and from there he again sneaked into Hong Kong, and upon his arrest by the police he again raised his non‑refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 July 2020 and attended screening interview before the Immigration Department with legal representation.             

7.  By a Notice of Decision dated 30 July 2020 the Director again 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 and followers upon his return to Vietnam as low due to the 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 other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor 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 96 million people spread across a vast territory of more than 331,000 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 Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

9.  On 2 September 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 17 March 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 26 March 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it suspected the credibility of his claim of fear of harm from some creditor over his unpaid debts that caused him to leave his country again to come to Hong Kong to seek protection, and that even if his account of events prior to his second departure of Vietnam to come to Hong Kong were true that there was no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam to negate whatever risk that may arise from his creditor that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 24 September 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 in which he just repeated his claim of fear of being harmed or killed by his creditor if refouled to his home country as before but without putting forth any proper ground for his intended challenge, 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 26 June 2021, the Applicant was therefore some 2 months late with his application after discounting the month of August 2021 due to court’s vacation, 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 2 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 26 March 2021 to his then reported address without being returned through undelivered post, I am unable to see 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 forward 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 Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.

18.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

19.  In the premises, and 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.

20.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and 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