TRAN VAN CUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2633/2019

[2025] HKCFI 865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2633 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 6 September 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 17 February 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 34, is a national of Vietnam. He arrived in Hong Kong on 8 June 2010. He was later arrested by the police for robbery and illegal overstaying and was sentenced to imprisonment for 17 months. He was deported back to Vietnam on 31 May 2011. Later, he sneaked into Hong Kong from Mainland China by boat. On 7 December 2015, the applicant surrendered to the Immigration Department. On 23 February 2016, the applicant lodged his non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor because of his inability to repay a debt of VND 1 billion.

5.  According to the applicant, in order to expand his iron works business, in 2011 he borrowed 1 billion VND from the bank. In 2103, he borrowed 1 billion VND from a loan shark. As from 2015, he was unable to pay the interest to the loan shark, who sent his subordinates to his home to demand repayment of the loan and interest. In an evening in November 2015, those subordinates came to his house and demand repayment. He was unable to pay. They warned him verbally that if he did not repay the debt, they would beat him and his family members. He was scared and left Vietnam for Hong Kong.

6.   Details of his claim are set out at paragraph 7 of the Notice of Decision dated 11 April 2017 (“the Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

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

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In summary, the Director found that: the absence or low intensity and frequency of the ill-treated encountered is indicative of a small future risk of harm [11-14]; state protection was available [15]; and internal relocation alternatives were available and reasonable [17].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 18 July 2019, the Board conducted an oral hearing for his appeal.

10.  Having considered the evidence, the Board found that that the applicant was dishonest [34]. In any event, having reviewed the various Country of Origin Information [16-17], the Board was satisfied that it would not be unreasonable or unduly harsh for the applicant to internally relocate [18]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 10 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any valid ground to challenge the Board’s Decision.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not accept his evidence and he asked the Court to review it.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

16.  The Board had considered each of the applicable risks and found that the applicant’s evidence did not satisfy any of the applicable risks. The applicant has raised no valid ground to challenge the Board’s findings.

17.  The Court, however, finds that in paragraph 34 of the Board’s Decision, the Board had raised hypothetical questions, which the Board did not put to the applicant at the hearing for his answers; yet, it came to the conclusion that the applicant was dishonest. Such finding is Wednesbury unreasonable to the applicant. Nevertheless, this defect in the Board’s reasoning does not assist the applicant’s application because of the reasons mentioned in paragraph 16.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.