NGUYEN VAN THUY AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1579/2024

[2025] HKCFI 802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1579 OF 2024

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 1st and 2nd Applicants (“the Applicants”) in open court;

Leave for the Applicants to apply for judicial review refused.

Observations for the Applicants:

1.  The Applicants are a married couple respectively aged 62 and 61 years and both nationals of Vietnam who had previously come to Hong Kong as refugees in the 1990s but were subsequently repatriated to Vietnam, and followed by 2 other illegal entries by the husband, the 1^st Applicant (“A1”) in 1998 and 2000 when he was also repatriated thereafter, but in April 2015 they again sneaked into Hong Kong and subsequently surrendered to the Immigration Department when they raised a non-refoulement claim for protection on the basis that if they returned to Vietnam they would be discriminated or persecuted by the Vietnamese government due to the fact that A1’s biological father was regarded as a traitor and a criminal in the country, and upon the subsequent illegal entry also by their younger daughter in July 2015 who was then a minor at the age of 12, they also raised a non-refoulement claim for her on the same basis which was then jointly assessed together with their own claims. They were all subsequently released on recognizance pending the determination of their claims.

2.  A1 was born in 1962 in An Duong, Le Chan District, Haiphong City, Vietnam where his biological father used to serve in the French army during the French colonial era, and upon the departure of the French colonists after their defeat in the Indochina War in 1954, the country was then divided into North Vietnam under the Communist regime and the US-backed South Vietnam, which soon led to hostile military confrontations between the two sides, and eventually escalated into the Vietnam War for the next 20 years, during which A1’s biological father was prosecuted by the North Vietnamese regime for treason and was put in prison until 1960.

3.  Upon discharge from prison his father married his mother who later gave birth to A1 in 1962 in An Duong, Le Chan District, Haiphong City in North Vietnam, but as his father still feared of further persecution by the Communist regime and therefore made plans to escape to South Vietnam, but before he was able to do so, he was arrested by the authorities and was sent to prison again where he died in 1967.

4.  Meanwhile the mother of A1 suffered from severe depression as a result of her husband’s imprisonment, and died of mental illness in 1965, whereupon A1 was placed in the care of his father’s good friend and wife, and upon the passing of his father they then adopted A1 as their own and gave him their surname to protect his true identity from the authorities.

5.  After the war ended in 1975, Vietnam was unified under the Communist regime officially as the Socialist Republic of Vietnam, where A1 attended school and later in 1980 served in the Navy. One day in December 1981 a fire broke out on the vessel in which he was on duty, and for which he was subsequently charged for dereliction of duty for falling asleep while on duty, and during investigation his true identity and relationship to his biological father were revealed, and as a result he was branded as the son of a traitor, and was detained for interrogation for 5 months during which he was tortured almost every day, and although he was later found by a court of not liable for the fire on the vessel, he was sent to a detention camp in the northern part of Vietnam for “re-education” where he was kept from 1981 to 1985.

6.  Upon his release in 1985, A1 returned to his home in Le Chan District, but was still under constant police surveillance and was followed everywhere. Eventually he met and married his wife, the 2^nd Applicant (“A2”) and raised a family with 3 children from the only work that he could manage as a street hawker after he was unable to apply for any jobs in the government, nor was he able to enroll his children into government schools, of which he suspected of being discriminated against by the authorities due to his relationship to his biological father.

7.  One day in 1991 A1 ran into a man called Quang whom he had befriended earlier in the detention camp and who was subsequently deported to China due to his Chinese origin but had returned to Vietnam to look for his family, and as he had nowhere to live, A1 allowed him to stay in his home.

8.  However, later in the same year in 1991 Quang failed to return without any news, and soon some policemen came to search A1’s home as Quang turned out to have been arrested for spying, and that A1 was also to be taken in for interrogation for providing assistance to Quang, but he managed to escape from his home to hide in a relative’s place, and later together with A2 they departed Vietnam on 9 June 1991 for Hong Kong where they made an application as refugees to the UNHCR, but their applications were refused that they were subsequently repatriated to Vietnam in 1997.

9.  Upon returning to their home district, the Applicants found that their house had been confiscated by the authorities, leaving behind only a piece of land held under the name of A2’s brother, and so they could only rent a small room in Haiphong City, and as they were known as returnees after having earlier fled the country, they were also regarded as traitors and were unable to find any employment, and so A1 again in 1998 and 2000 departed Vietnam for Hong Kong to look for jobs but was inevitably arrested and repatriated to Vietnam.

10.  Upon his last return to Vietnam in 2001, A1 resumed his former trade as a street hawker selling fruits and vegetables, and managed to build a small house for the family on the land of A2’s brother, and in 2014 he together with A2 started to run an internet bar in front of their home, but their subsequent application for the necessary license was refused which A1 again suspected of being discriminated against by the authorities, and that their business was eventually closed down by the police who then arrested and detained the Applicants for half a day during which they were beaten by some of the policemen.

11.  Shortly after their release by the police, some unknown men came to their home to make threats against them, and so the Applicants in April 2015 again departed Vietnam for China, and from there they again sneaked into Hong Kong and subsequently raised their non-refoulement claims for protection, and after they had also arranged for their youngest daughter to sneak into Hong Kong to join them, they also raised a non-refoulement claim for her on the same basis, and for which they completed a Non-refoulement Claim Form (“NCF”) on 26 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

12.  By a Notice of Decision dated 9 December 2016 the Director of Immigration (“Director”) rejected the claims of the Applicants and their daughter on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

13.  In his decision the Director took into account of all the relevant circumstances of the claims of the Applicants and their daughter and assessed the level of risk of harm from the Vietnamese authorities upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from the Vietnamese authorities, that there is no evidence of any discrimination or persecution by the Vietnamese authorities against A1 due to his relationship to his biological father other than his own suspicion or speculation and that A1 had never once been arrested by the authorities as a returnee upon any of his many repatriations back to the country over the years, and that reliable and objective Country of Origin Information (“COI”) show that reforms have been on-going in Vietnam by the government to improve and protect the rights of its citizens and without any systematic repercussions taken against any returnees, and that reasonable internal relocation alternatives are also available in Vietnam with a large population of 93 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicants as able-bodied adults with working experience to move with their daughter to other areas of the country away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for anyone to locate them.

14.  On 22 December 2016 the Applicants and their daughter jointly lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended 2 oral hearings on 5 June 2024 and 8 July 2024 before the Board during which it was A1 who mainly gave evidence for their claims which were adopted by A2 and their daughter who was by then an adult at aged 21, and all 3 also answered questions raised of their claims by the Adjudicator for the Board. On 5 September 2024 their appeal was dismissed by the Board which also confirmed the Director’s decision.

15.  In its decision the Board found material inconsistencies discrepancies contradictions and implausibility in the Applicants’ evidence in particularly A1’s account of past events including those relating to his biological father and his own of allegedly been discriminated arrested prosecuted and persecuted by the Vietnamese authorities over the past 30 odd years that it found A1 not a credible witness and rejected the credibility of his claim and those of his wife and daughter of allegedly fear of discriminations and persecutions by the Vietnamese authorities due to the A1’s past that caused them to flee their country to come to Hong Kong to seek protection, that there was no evidence of any discrimination or persecution by the Vietnamese authorities against the Applicants or their daughter due to A1’s relationship to his biological father other than their own suspicions or speculations, that the claims of the Applicants or their daughter based on A1’s alleged accounts even if true do not come within the definition of any of the applicable grounds or avail them of non-refoulement protection, that upon his last repatriation to Vietnam in 2001 A1 resided in his home district and made his living without any further incident for some 14 years until 2014 when he lost his bar business without complying with the regulations for a license and for which the authority was entitled by law to close it down that it cannot be considered as any discrimination or persecution against A1 or his family, that the evidence suggested that A1 came to Hong Kong on all his previous occasions as an economic migrant to seek jobs rather than as a refugee, and that relevant COI show that there is no systematic prosecution repercussion or persecution by the Vietnamese authorities against citizens for leaving the country and/or for returning upon their repatriation after having given guarantees not to do so by the government to the UN, and with programme to provide job creation opportunities, start-up loans for business, vocational training courses, and other community assistances to those returnees, as well as with regular monitoring of such returnees by the UNHCR and visits by the British embassy and other relevant NGOs as well as monitoring of human rights situations within the country by the US and European governments that it is not accepted that the Applicants and their daughter will face any risk of being harmed or discriminated or persecuted by the Vietnamese government or authorities upon their return to Vietnam that the Board concluded that their claims for non-refoulement protection failed on all applicable grounds. 

16.  On 13 September 2024 the Applicants only without their daughter filed a Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for their intended challenge:

(1)  That the Board reached the decision wrongly in assessing their non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that their lives must be protected by the criminal law from the killings that they may face if deported back to their home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State acquiescence in their case which led to an unfair outcome of rejecting their claims;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the personal backgrounds of the Applicants and experiences in assessing their claims;

(4)  That the Board had listed relevant COI which supported the Applicants’ aversions that the police in their country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicants’ cases which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicants’ argument that corruption and incompetency of the administration in their country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicants’ assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicants’ explanations and unreasonably required them to respond to questions that they were not in position to offer any response;

(7)  That the Adjudicator made a ruling to dismiss the Applicants’ appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.         

17.  These are however all just bare and vague assertions of the Applicants containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to their case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, nor were they able to do so at the hearing of their application. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicants, I do not find any of them reasonably arguable for their intended challenge.

18.  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.

19.  In the Applicants’ case, the Board rejected their claims essentially on its adverse findings on their credibility for the analysis and reasoning set out in its decision after hearing both of them in their oral evidence and answers to questions raised of their claims, and while I do have some concerns over the way the Adjudicator dealt with some of the credibility issues such as A1’s account of past events relating to his biological father as well as his own including the fire accident on the vessel when he was serving in the Navy or his association with Quang (see [61] – [63] of Decision), when all of which had taken place more than 30 or 40 years ago that minutiae might not be possible after the general details already provided by A1 that one may reasonably argue that benefits of the doubt should have been accorded to A1 as to the truthfulness of those accounts, but given the Board’s subsequent careful and proper analysis of the relevant COI and its correct assessment and finding of no reliable evidence of any discrimination or persecution taken by the Vietnamese authorities against A1 or his family on the basis of his alleged account or to suggest that they may face any such discrimination or persecution upon their return to Vietnam, and that the Board was also entitled to find on the basis of the evidence before it that A1 and/or A2 of having come to Hong Kong in the past as economic migrants or for economic reason rather than to seek protection from their alleged risk of harm from the Vietnamese government (see [64] & [69] – [90] of Decision), and that in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants in their Form or at the hearing of their application before the Court, I do not find any reasonably arguable basis to challenge such findings of the Board.               

20.  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 Applicants’ claim.

21.  For all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their 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