BUI HUY DAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2856/2019

[2025] HKCFI 2885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2856 of 2019

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;

1.   The Form 86 be amended on the court’s own motion.

2.   The applicant’s application for leave to issue the judicial review application be dismissed.

Observations for the Applicant:         

Introduction

1.  By prescribed Form 86 filed on 27 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 12 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 18 January 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  In his Form 86 prepared in Chinese, the applicant named both the Board and the Director as the proposed respondents as well as the interested parties. As the Board should have been the proper respondent and the Director interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 24 June 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

4.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

5.  The applicant is a national of Vietnam.  He was arrested by police in Hong Kong for illegal remaining on 20 August 2015 and was referred to the Immigration Department on the same day.  The applicant raised his non-refoulement claim on 29 August 2015.  The applicant’s claim was considered under all applicable grounds - the risk of torture^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The basis of the claim was that he would be harmed or killed by his creditor with triad background for an outstanding loan.

6.  The applicant stated that in around March/April 2013, he obtained a loan from a money-lender in order to expand his fish breeding business. After a storm, the applicant started to default at the beginning of 2014 on the monthly repayments. Initially, the creditor gave him more time to repay. However, after a few months, the creditor made threats to the applicant.  In September or October 2014, the creditor and 4 or 5 of his henchmen assaulted the applicant with poles for 15 to 20 minutes at his home.  The applicant lost consciousness and later woke up in hospital. His left leg, right knee, back, and back of the neck were injured, and he was in great pain.  He was hospitalized for a week, and recovered from his injury after 1 month.

7.  In February 2015, the applicant fled his village to hide in the forest in Ung Bi to avoid his creditor.  Subsequently, when he was on his way to his friend, he encountered the creditor’s henchmen who punched and kicked him for 15 to 20 minutes.  The injury from the assault was not serious, and he made his way back to his friend’s home.

8.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

9.  On 12 February 2019, the applicant attended a hearing before the Board, during which he gave oral testimony.

10.  The Board found that the applicant was not a credible witness due to inconsistencies in his evidence.  Nevertheless, the Board proceeded to assess the claim on the assumption that his factual account were accepted. However, the Board did not consider that the pain and suffering inflicted on the applicant was so severe as to amount to torture. Thus, the Board found that there was no real risk of harm. The Board also found that state protection was available and internal relocation would be viable.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

11.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Discussion

12.  In his supporting affirmation for his Form 86, the applicant raised the following grounds for seeking relief:

(a)  The Board did not properly understand the country conditions in Vietnam.  The applicant cited a news report about corruption of government officials for the year 2006 in support of the country of origin information (“COI”) ground;

(b)  The Board’s assessment at [46] of the Board’s Decision that the pain or suffering inflicted on the applicant on the 2 incidents of assault was not so  severe as to amount of torture was procedurally unfair.  The assessment was subjective and not impartial, and was made without expert medical evidence.  The applicant exhibited a photograph of scars on his back resulting from the injuries, and stated that he continued to suffer from pain;

(c)   The Board’s assessment of the applicant as not being credible based on a few or minor inconsistencies in his evidence at [26] – [35] of the Board’s Decision was subjective and not impartial.  The Board did not objectively consider all of the evidence in the round. The Board’s Decision was improper and unsound.

13.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. Apart from stating that he wanted to stay in Hong Kong and that he would do his best to repay the loan before he went home, the applicant had nothing else to add.

14.  I will firstly deal with the applicant’s grounds in the reverse order. First, the applicant’s third ground regarding the assessment of the credibility which this court has summarized in [12 (c)] above. In finding that the applicant was not a credible witness, the Board had taken into the consideration of the applicant’s evidence set out in the Non-refoulement Claim Form (“NCF”), his evidence given at the Screening interview as well as at the hearing before the Board.  After having found the various discrepancies of the applicant’s evidence in relation to the centerpiece of the applicant’s claims concerning the loan, the assaults and the threats by the creditor, the Board did not accept that there was a loan or that he had been assaulted and threatened by the creditor.  These are findings of fact, which the court in a judicial review will not interfere. The applicant did not condescend to particulars as to how the Board’s conclusion was improper or unsound.  The Board in fact correctly applied the law by correctly stating that the burden of proof was of a low standard.   I am not satisfied that the applicant’s third ground is reasonably arguable.

15.  As for the second ground ([12 (b)]) concerning the severity of the applicant’s injuries from the alleged assaults.  In discussing this ground, it is important to bear in mind that the Board had already rejected the applicant’s evidence that he had been assaulted or threatened.  I am satisfied that the Board had adopted high standards of fairness in assessing the level of risk despite its adverse credibility finding.  There was no medical evidence that the applicant’s scars on his back were from the alleged assaults.  In my view, the photo of the applicant’s scars do not show that the Board’s finding was unreasonable.  I am satisfied that the Board was entitled to take into account the applicant’s narration of the events after the assaults - that he had recovered within 1 month, that he could run away to live in a house some 40 km away; that he continued to work as a construction/delivery worker- before reaching the conclusion on the severity of the pain and suffering. I am therefore not satisfied that this ground is reasonably arguable.

16.  As for the last ground, the COI ground, the applicant only referred to one item of COI, which was not an updated information.  In the Board’s Decision (at [39-42]), the Board considered the COI from the period between 2013 and 2019.  In my view, the COI that the Board considered was not only extensive and detailed, it was relevant to the past and also at the time of the Board’s assessment.  The one piece of the COI the applicant referred does not relate to the relevant period of the applicant’s appeal to the Board.

17.  In any event, the Board had also found that the loan was only a matter between the applicant and the creditor, and it did not involve any state agent.  In the circumstances, I am satisfied that there is not any error of law in the Board’s Decision in relation to its consideration of the COI and its conclusion on internal relation as well as state protection. This ground is also not reasonably arguable.

18.  In conclusion, it is plain that the applicant has not advanced any valid grounds showing that the Board had acted unlawfully or procedurally or unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

19.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness.  All in all, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

Orders

20.  The Form 86 be amended on the court’s own motion.

21.  The applicant’s application for leave to issue the judicial review application be dismissed.

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