NGUYEN CONG HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1256/2022

[2025] HKCFI 495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1256 of 2022

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Nguyen Cong Ha (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 26 October 2022 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 June 2021 (“DOI Decision”) 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 December 1964 in Hai Duong, Vietnam. He received 10 years of education and had worked as a truck driver and operated his own trucking business.

The Claim

3.  The Applicant borrowed VND 500 million (“Loan”) from a moneylender (“Creditor)” on 15 January 2020 to start his own business (“Business”). The monthly interest for the Loan was VND 50 million and the principal was due after 1 year. The Applicant believed that the Creditor had triad society background.

4.  The Applicant used the Loan together with his own savings to buy a truck and hired a driver (“Driver”) to start the Business.

5.  About three months later, the Driver accidentally killed someone in a driving accident (“Accident”). The Applicant paid the family of the victim VND 150 million and applied VND 100 million for the bail of the Driver. The truck was seized by the police pending the outcome of the investigation. The Applicant was unable to pay the Creditor after the Accident.

6.  In around June 2020, the Creditor and three of his associates went to the Applicant’s home to collect the Loan. They were armed with iron rods and they beat the Applicant for 10 minutes. They asked him to pay the outstanding interest of VND 100 million in one month or he would be killed.

7.  The Applicant was hospitalised for about 15 days. The Creditor and his men visited the Applicant in the hospital to see if the Applicant was staying at the hospital (as opposed to secretly escaping). They repeated the death threats to him before leaving voluntarily.

8.  The Applicant learnt from his friend that he could seek protection in Hong Kong. He borrowed around HK$10,000 from his friend and entered Hong Kong illegally with the help of an agent.

9.  The Applicant claimed that he would be harmed or killed by the Creditor if he were returned to Vietnam.

Procedural history

10.  The Applicant had previously entered Hong Kong illegally on 4 December 2015. He was arrested by the police on 7 December 2015 and deported back to Vietnam on 28 December 2015.

11.  The Applicant entered Hong Kong illegally again on 27 or 28 July 2020 and was arrested by the police on 15 August 2020. By a written representation of 26 August 2020, the Applicant lodged the Claim.

12.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  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”).

13.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

14.  On 14 November 2022, 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.

15.  On 20 August 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that he was safe in his country (“Withdrawal Application”).

The DOI Decision

16.  The Director noted that the low intensity and low frequency of past ill-treatment from the Creditor was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries he suffered from the Creditor did not attain a minimum level of severity. The Creditor and his associates had the opportunities to seriously harm or kill the Applicant when they visited his home, but they refrained from doing so. The Creditor also did not harm the Applicant while he was staying at the hospital. This showed that the Creditor did not really intend to kill or seriously harm the Applicant. They only wanted to press him to repay the Loan.

17.  The dispute between the Applicant and the Creditor was private in nature. The Vietnamese police or government was not involved. The Applicant could obtain his passport and enter/leave Vietnam without hindrances. He was not targeted by the Vietnamese authorities. They had no adverse interest in the Applicant.

18.  The Applicant out of his own volition did not seek protection from the Vietnamese police or other Vietnamese authorities. 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.

19.  There was no evidence suggesting that the Creditor had government support or that he had the network or resources to locate the Applicant over the whole country. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Ho Chi Minh City or Da Nang, the Creditor 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.

20.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

21.  After considering the evidence adduced before the Board, the Board found the Applicant’s account not credible and rejected his accounts as untruthful for the reasons given in §§19-37 of the Board’s Decision.

22.  The Board did not accept that: (a) the Applicant was indebted to the Creditor for the Loan; (b) he had operated the Business; and (c) the Driver encountered the Accident and the Applicant had incurred substantial compensation (§32 of the Board’s Decision). The Board also did not accept that the Applicant had been assaulted by the Creditor (§34 of the Board’s Decision).

23.  After considering the COI and all circumstances, the Board did not accept that the Creditor had extensive power and network in Vietnam, or that the Creditor had the resources to hunt for and harm the Applicant if the Applicant moved to other cities of Vietnam (§§35 and 58 of the Board’s Decision).

24.  The Board did not accept that the Applicant had been ill-treated as alleged or that there was a real risk that the Applicant would be ill-treated or at risk of arbitrary deprivation of life if he were returned to Vietnam.

25.  There was no reliable evidence that the alleged acts of torture had inflicted on the Applicant pain or suffering of certain severity or gravity. The Board found that the gravity of ill-treatment alleged by the Applicant was low. (§§42, 49 and 51 of the Board’s Decision)

26.  The Board found that the Applicant had no subjective fear of harm from the Creditor and his fear of persecution was not well-founded (§51 of the Board’s Decision).

27.  The Applicant’s dispute with the Creditor was purely private in nature (§55 of the Board’s Decision) and his fear of harm was not for any of the reasons referred to in Article 33 of the Refugees Convention. His claim based on persecution risk therefore failed.

28.  The Board also found that the Vietnamese government was not involved in and did not acquiesce to the alleged harm caused by the Creditor. The Board further held that the frequency and severity of harm towards the Applicant was low and that he did not face any real risk of physical or mental harm upon his return. His claim based on torture risk, BOR 3 risk and BOR 2 risk was therefore dismissed.

29.  There was no indication that the Creditor was acting in capacity as a State actor when he threatened to kill the Applicant or that the local government tolerated or condoned the acts of the Creditor. The Applicant decided not to seek protection from the local police out of his own volition. The Board found that state protection would be available to the Applicant.

30.  There was no evidence or COI showing that the Creditor’s influence or power extended beyond the Applicant’s home area. The Board considered that the influence or power of the Creditor, if any, was localized at the Applicant’s hometown. There was nothing to suggest that the Creditor, by means of any influence and power that he might have due to his connection with criminal gangs, had resources to hunt for the Applicant if the Applicant moved to other cities of Vietnam. The Board found that internal relocation to Ho Chi Ming City, Ha Noi, Da Nang or Nha Trang would be viable to the Applicant.

31.  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

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

33.  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.”

34.  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

35.  In the Form 86, the Applicant annexed a statement stating the grounds for his intended judicial review.

36.  The Applicant put forward the following grounds:

(1)  the Director and the Board reached their decisions wrongly and their decisions were not reasonable and fair;

(2)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence;

(3)  the Board placed too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4)  the Director failed to consider or give enough weight to COI in support of the Applicant’s case;

(5)  The Board was procedurally improper and/or unfair when assessing the Applicant’s evidence and unreasonably required the Applicant to respond to questions that he was not in a position to respond;

(6)  the Director was unfair and failed to attain the high standards of fairness in not accepting the Applicant’s assertion on corruption and incompetency of the administration in Vietnam; and

(7)  the Board was irrational in not allowing the Appeal.

37.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents.

38.  In the Form 86, the Applicant raised various complaints against the Director. However, this is an application for leave for judicial review of the Board’s Decision, not the DOI Decision. Hearing for an appeal or a petition before the Board is de novo. Errors made by the Director (if any) will not form grounds for judicial review against the Board’s Decision.

39.  In any event, the aforesaid grounds advanced by the Applicant in the Form 86 were without particulars. They were only bare assertions.

40.  In the Form 86, the Applicant complained that the Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case. This is not right. In §§6.12-6.15 and 15-16 of the DOI Decision, the Director had considered the issues of state protection and state acquiescence. The Director had further considered the same in the context of COI. In any event, such complaint cannot validly be made against the Board. In the Board’s Decision, the Board devoted sections D5.1.1 and E1.2 of the Board’s Decision to analyze and discuss the issue of state acquiescence in the Applicant’s case. The Board did not accept that there was active or passive acquiescence on the part of the local authorities to the acts of the Creditor. The Board was of the further view that reasonably sufficient state protection was available to the Applicant in Vietnam. Relying on this ground to seek judicial review against the Board’s Decision has no merits.

41.  The Applicant complained that the Board had failed to take into account his personal background and experience. The Board had set out the Applicant’s case in some details in its 34 pages decision. The Applicant did not specify which part of his personal background or experience had been overlooked by the Board. This complaint of the Applicant is only an empty bare assertion without any merits.

42.  Both the Director and the Board had carefully considered relevant COI before reaching their respective decisions of refusing the Claim or dismissing the Appeal. The alleged corruption and incompetency of the administration in Vietnam had been considered by the Director and the Board in the context of the relevant COI.

43.  As pointed out in the Nupur Mst case (supra), assessment of COI materials and state protection were primarily within the province of the Board and the Director. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board. The fact that the Applicant did not agree to the findings of the Board and/or the Director per se is no ground for challenging such findings.

44.  I see no merits in the proposed grounds advanced by the Applicant. The Applicant’s proposed challenge to the findings of fact by the Director and/or the Board is not reasonably arguable.

45.  The Applicant complained that the Board had unreasonably required him to respond to questions that he was not in a position to respond. No particulars had been provided as to what inappropriate questions had been put by the Board to the Applicant. In section C2.1 of the Board’s Decision, the Board set out various questions put to the Applicant at the hearing before the Board and his answers to those questions. I do not see any of the questions as inappropriate or unreasonable. If the Applicant was not in a position to answer any of the questions raised by the Board, he could inform the Board and tell the Board why he was not in a position to answer such questions. There was no record in the Board’s Decision that the Applicant had raised any objections to any of the questions from the Board. This complaint of the Applicant is wholly devoid of merits.

46.  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 Decision, 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 Decision 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 Board found that there was insufficient evidence that the Board might rely on to accept the Applicant’s material assertions and the Board did not accept them. The Board found that there was no reliable evidence that the Applicant had a well-founded fear of ill-treatment that was of a sufficiently grave nature as to amount to persecution for any of the reasons referred to in Article 33 of the Refugees Convention. Reasonably sufficient state protection was available to the Applicant in Vietnam. The Board did not accept that the Applicant suffered any physical or mental ill-treatment. There was no evidence showing that the alleged physical assaults or verbal threats by the Creditor (if substantiated) constituted acts of “torture” as defined under section 37U of the Ordinance and were inflicted with the consent of government officials or other person acting in an official capacity. The Board did not find any circumstances suggesting that the Applicant faced risk of arbitrary deprivation of life or BOR 3 risk if he were returned to Vietnam.

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 filed the Withdrawal Application on 20 August 2024 together with a statement confirming that he would like to withdraw his judicial review application and return to his country as soon as possible. He stated that it was safe for him to return to his country and he cancelled his case of his own free will.

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 Decision 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