NGUYEN VAN TUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2717/2019

[2025] HKCFI 2694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2717 of 2019

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 Van Tung (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 18 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 February 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the NRC

2.  The Applicant is a Vietnamese born on 10 July 1983 in An Hai, Vietnam. He had received 17 years of education.  He graduated from a university in 2006 and worked 4 years in the tourist industry.  He later operated his own hand phone business (“Business”).

3.  The Applicant claimed that in 2017, he borrowed Vietnamese Dong (“VND”) 900 million (“Loan”) from a moneylender (“Lender”) in Vietnam to start the Business.  Every month he had to pay to the Lender VND 30 million as interest and part repayment of principal.

4.  The Business started suffering loss since March 2017.  The Applicant was unable to make any payment to the Lender since May 2017.

5.  As the Applicant was unable to repay the Loan, the Lender came with 2 underlings to threaten the Applicant to repay the Loan or they would make life difficult for him.  A few days later, the Lender came again with 3 underlings.  When the Applicant was unable to pay, they assaulted the Applicant with fists (“1^st Attack”).  They threatened the Applicant that if he still failed to repay, he would not have peace.  They also threatened the Applicant not to report to the police and the Applicant did not.

6.  The Lender came with 2 underlings after 5 days and demanded the Applicant to repay the Loan within 2 weeks.  They forced the Applicant to sign a guarantee promising to repay all outstanding interest on and principal of the Loan within 2 weeks.

7.  The Applicant went to Ho Chi Minh City after 2 weeks in fear of revenge from the Lender.  He stayed there for 5 months and did not meet the Linder or his underlings.  The Lender also did not go to the Applicant’s home during that period.  The Applicant thought that it was safe for him to return home.

8.  In October 2018, when the Applicant was having breakfast near his home, he saw 3 men approaching him with knifes in their hands.  He immediately ran away and jumped into a river to escape. (“2^nd Attack”)

9.  The Applicant did not returned home after the 2^nd Attack.  He called his parents and was told that a group of people came to his home with weapons and threatened to kill him if he still failed to repay.

10.  The Applicant stayed in a motel for a few days.  As he was unable to repay the Loan, he came to Hong Kong to seek protection.  He departed Vietnam on 27 October 2018 for Mainland China.  He sneaked from the Mainland to Hong Kong on the same day.  The Applicant was arrested by the Hong Kong police on 31 October 2018.

11.  When the Applicant was in Hong Kong, he was told by his family that the Lender had gone to his home and threatened his father that the Lender would kill the Applicant upon finding him.  The Applicant said that his father was not harmed as he was too old.  

12.  The Applicant claimed that the Lender would harm or even kill him if he were returned to Vietnam because he was unable to repay the Loan.

13.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

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

(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 (“persecution risk”).

14.  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.

15.  On 17 September 2019, the Applicant filed the Form 86 herein (“Form 86”) which was dated 24 June 2019 seeking leave for judicial review of a decision dated 18 February 2019 which was the date of the DOI Decision.  On 17 September 2019, the Applicant also filed his supporting affirmation affirmed on 24 June 2019 (“Supporting Affirmation”).  In the Supporting Affirmation, the Applicant only exhibited the Board’s Decision and its covering letter.  In the Form 86, the Applicant named both the Board and the Director as the proposed respondents.

16.  Although the DOI Decision and the Board’s Decision were issued in Chinese, the Applicant filed the Form 86 and the Supporting Affirmation in English.  I decided to issue this judgment also in English.

Legal principles applicable to judicial review

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

18.  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 [i.e. country of origin information] 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.”

19.  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

20.  The Applicant referred to the DOI Decision in the Form 86 as the subject decision for his intended judicial review but exhibited only the Board’s Decision to the Supporting Affirmation.  Usually, the court would clarify with the Applicant at court hearing the subject matter for his intended judicial review. 

21.  However, the Applicant failed to attend the court hearing scheduled for 21 May 2025 (“Court Hearing”) despite notice of hearing dated 24 April 2025 having been sent to him and not being returned.  The Applicant had also failed to respond to a previous letter dated 18 February 2025 sent by the court to him inviting him to submit his submissions to the court.  I proceeded to deal with the Applicant’s application for leave for judicial review according to the papers placed before the court. 

22.  The Applicant has named both the Board and the Director as respondents in the Form 86.  As such, I proceed on the basis that the Applicant intended to seek judicial review of both the DOI Decision and the Board’s Decision.

23.  The Applicant did not put forward any grounds for his intended judicial review in the Form 86 or the Supporting Affirmation. 

24.  The Applicant had appealed against the DOI Decision to the Board which was rejected by the Board.  The Court of Appeal had stated in Re: Ali Usman [2018] HKCA 955 at §21 that: “this court has on many occasions held that as the decision of the Director is capable of being appealed by appeal/petition process, where that process has been invoked (as it was here), there is no scope for review of the Director’s Decision, and the focus should be on the decision of the Board.”

25.  The Applicant had appealed against the DOI Decision to the Board.  He may not have second bite of the cherry by seeking judicial review against the DOI Decision.  I dismiss the Applicant’s application for leave for judicial review of the DOI Decision.

26.  In this case, the Board applied ST v Betty Kwan & Ors [2014] 4 HKLRD 277 and held that the Appeal could be justly determined without a hearing.  This is permissible under section 12 of Schedule 1A to the Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoluement Claims Petition Scheme.

27.  The Court of Appeal had noted in the ST case (supra) at §26 of the judgment that there was no absolute right to an oral hearing.  It was for the adjudicator, in the exercise of his discretion, to take the most effective and fairest way to approach the concern in question.  The Applicant raised no complaint in the Form 86 or the Supporting Affirmation for the Board disposing of the Appeal on papers and he did not attend the Court Hearing to raise any. 

28.  In §§23-37 of the Board’s Decision, the Board set out the Applicant’s case.  In §§50-70 of the Board’s Decision, the Board considered the Applicant’s evidence in the context of each of the applicable grounds under the USM.  The Board proceeded with the Appeal on the basis of the evidence adduced by the Applicant without raising any material factual disputes. 

29.  Based on the Applicant’s evidence, the Board found that the harm inflicted by the Lender on the Applicant had not attained a minimum level of severity required for claiming protection under the BOR 3 risk or the torture risk.  The Applicant’s evidence did not show that the Lender intended to inflict serious harm on the Applicant.  The Applicant did not sustain serious injuries in the Attacks and his father had not been harmed.  This showed that the Lender only wanted to press the Applicant for repayment of the Loan.  The fact that the Applicant could travel to Ho Chi Minh City to avoid the Lender and later make arrangements to come to Hong Kong via the Mainland showed that his physical and mental health had not been adversely affected by the alleged ill-treatment from the Lender.

30.  The Board found that the dispute between the Applicant and the Lender was private dispute and not covered by the persecution risk.  No evidence suggested that any government official or the Vietnamese government was involved in the Applicant’s feared harm.  Relevant country of original information showed that reasonable state protection would be available to the Applicant.

31.  The Board assessed that the risk of the Applicant being subjected to the torture risk upon his return to Vietnam was low.  The Board found that the Applicant’s claimed risk had nothing to do with BOR 2 and there was insufficient evidence to show that the Applicant’s life would be arbitrarily deprived of in violation of BOR 2 if he were returned to Vietnam.

32.  In §§71-81 of the Board’s Decision, the Board considered the viability of internal relocation to the Applicant and found that the Applicant might relocate to Ho Chi Minh City or Da Nang to avoid the perceived risks.

33.  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 applicable grounds under the USM.  These were findings of fact 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.  I found none in this case. 

34.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  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.

35.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

36.  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 for the Claim.  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 and has no realistic prospects of success.

Conclusion

37.  In the premise and having considered the Board’s 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