LE QUOC DAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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 11 May 2021 seeking 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 27 April 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 October 2020 (the “Notice”) refusing his application for non-refoulement protection. 

2.  The Applicant had requested an oral hearing.  A hearing on 14 January 2025 was scheduled and a notice of hearing was sent to him by post on 12 December 2025 at his address as stated on his Form 86 and at his updated address discovered from the Immigration Department on 7 November 2025.  The Applicant had never informed the court of any change of address since filing his Form 86.  Neither of the notices has been returned through the post and there is nothing to suggest that he had not received either of the notices of hearing.  A court staff also successfully contacted him at 4:15 pm on the afternoon of 13 January 2026 and reminded him of the hearing.  The Court was satisfied that the notice of hearing had been duly served on the Applicant.  However, he did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Vietnamese national, now aged 46.  He was arrested by the Hong Kong Police on 29 October 2018.  He claimed to have entered Hong Kong illegally from Mainland China the day before.  His personal background, 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.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  He raised a non-refoulement claim by way of written signification on 26 March 2020.  On 29 June 2020, he filed a non-refoulement claim form (“NCF”). In gist, he claimed that if returned to Vietnam he will be killed by a moneylender for being unable to repay the loan he borrowed from the moneylender.  His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Decision of the Board.  He now applies for leave to apply for judicial review of that Decision. 

The Applicant’s case

4.  The Applicant’s case is that in February 2018, he borrowed 800 million Vietnamese Dong (“VND”) at a monthly interest of VND 24 million from the moneylender to expand his wholesale business in fruits and vegetables.  The principal was to be repaid in one and half years.  In July 2018, he had a traffic accident in which he damaged a BMW car and had to pay VND 700 million as compensation to the car owner.  As a result he defaulted on the loan since August 2018.  He fled to Ho Chi Minh City.  On 28 October 2018, he fled to Hong Kong.  After his arrest, he was detained at Castle Peak Bay Immigration Centre, where he came to know another Vietnamese detainee surnamed Quan.  Quan said he could liaise with the moneylender to defer repayment of the loan.  Hence, he voluntarily returned to Vietnam in December 2018.  Quan arranged for him to meet with the moneylender, but the moneylender assaulted him and demanded immediate repayment of totally VND 780. The Applicant could not repay and fled to Hong Kong a second time on 15 March 2020. 

Finding of the Board

5.  The centrepiece of the Applicant’s case is that he borrowed a loan from a gangster moneylender to expand his business, but as he had to pay compensation arising from a traffic accident, his business collapsed and he was unable to repay the loan.  Hence, he was at risk of harm from the moneylender.  He testified before the Board, but gave an inconsistent account of his case in significant material respects.  For example, he told the Board that he borrowed the loan in January/February 2017 instead of in 2018 as he had said in his NCF.  More importantly, he said the owner of the BMW car damaged by him demanded compensation of VND 350 million and that he sold his truck for VND 170 to pay part of the compensation.  But, he said in his NCF that the car owner demanded VND 700 million and he sold his truck for VND 300 million.  If his life was genuinely at risk of harm from the moneylender, the Board found it impossible to accept that he would choose to pay compensation to the car owner instead of to pay the moneylender and put his life at risk.  The Board did not accept he was indebted to the moneylender and that he had indeed operated a fruit and vegetable business as he alleged.  The Board also found no reliable evidence to substantiate his account about assaults by the moneylender and did not accept he had been assaulted by the moneylender. 

6.  After considering the country of origin information (the “COI”), the Board rejected his claim that the moneylender was influential and had extensive power and network to hunt him and harm him anywhere in Vietnam.  It also found adequate state protection would be available to the Applicant.

7.  Applying the law applicable to non-refoulement protection to these facts, the Board found the Applicant had failed to establish his claim for non-refoulement protection under any of the applicable grounds under the Unified Screening Mechanism and dismissed his appeal against the decision in the Notice.

The legal principles applicable to judicial review

8.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

9.  The Applicant did not put forward any grounds of application for judicial review in his Form 86.  In his supporting affirmation, he reiterated his claim and fear.  In effect, he is seeking to challenge the Board’s finding of fact that he would not be at risk of any of the proscribed harm if he was returned to Vietnam.  For reasons as explained in the preceding section, this is impermissible in an application for judicial review.  The Applicant did not attend the hearing to supplement his grounds of application.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion

10.  Having rigorously examined the Director’s Notice, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the 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 and quoted relevant precedents in support of its decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claim.  The Applicant’s claim is founded on the threat of harm or death by his moneylender for not being able to repay the loan and interest.  The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of his risk of harm.  The Board had carefully weighed the evidence and assessed his credibility.  Because of the multiple and significant inconsistencies in his evidence, the Board found him incredible.  It found he had failed to prove the existence of the loan and threats even to the low standard of proof required.  As the Applicant bears the burden of proving his claim, such a finding is fatal.  These are mixed finding of law and of fact.  Insofar as they are finding of the law, the Board is absolutely correct.  Insofar as they are finding of fact, they are within the realm of the Board, which the court in an application for judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision.  The Court could detect no errors of law or procedural unfairness in the Decision.  The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test.  The Decision is utterly without fault.  Having considered his grounds for application, the Court is satisfied that the Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

11.  For the above reasons, the Applicant’s application for leave to apply for judicial review 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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