DAO XUAN TIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 15 July 2022 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 28 June 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”), refusing his application for non‑refoulement protection. 

2.  The Applicant had requested an oral hearing.  A hearing on 11 March 2026 was scheduled and notice of hearing was sent to him by post on 27 February 2026 to his last known address discovered from the Immigration Department on 6 February 2026.  Previously, numerous letters had been sent to him at his address as stated in his Form 86, but they were returned with a remark that he had moved.  An attempt was made by a court staff on the afternoon 10 March 2026 to contact him by telephone to remind him of the hearing, but the telephone service had been disabled.  There is nothing to suggest that the Applicant had not received the notice of hearing or had moved.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice.  However, he did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

The Applicant’s claim

3.  The Applicant is a Vietnamese national, aged 32.  His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, the Applicant claims he will be harmed or killed by a moneylender for being unable to repay a debt owing to the moneylender. 

4.  The Applicant’s case is that he borrowed nine billion Vietnamese Dongs from a moneylender to start a pig farm in May 2017 at a monthly interest of 45 million Dongs.  His farm failed because of the swine flu attack.  He became unable to pay his debt.  To avoid ill-treatment from the moneylender, he sneaked into Hong Kong in June 2019.  He was arrested and repatriated in July 2019.  He sneaked into Hong Kong again in November 2020.  He was arrested on 13 November 2020.  On 18 December 2020, he lodged a non-refoulement claim after a deportation order had been issued against him on 26 November 2020.

The finding of the Board

5.  The Applicant testified before the Board.  The Board considered the Applicant’s failure to seek protection on his first trip to Hong Kong in 2019 and the delay in raising the claim in his second trip mentioned in the preceding paragraph were negative indicators which adversely affected the credibility of his claim that he came to Hong Kong to seek protection.

6.  The Board researched extensively into country of origin information (“COI”) in Vietnam, particularly about moneylending practice and interest rate, pig farming, pig price, the outbreak of African swine fever, and average income of Vietnamese from 2008.  It tested the Applicant’s case against the COI and found numerous inconsistencies between his case and the COI.  For example, the Applicant claimed his pigs were infected in June 2018 and were all dead in December 2018, whereas according to the COI, the swine flu broke out in 2019, a year later.  He told the Board that he bought piglets at the price of 5 million Dongs each, but that was only about four times the price quoted in the COI at the time.  He said that he had to pay interest at the rate of 60% per annum, but according to COI from the United Kingdom, the interest rate charged by illegal moneylenders in Vietnam at the time was between 180% and 300%, three to five times higher.  His story lacked realism.

7.  His account of how he obtained the loan is inconsistent with the moneylending practice as reported in the COI.  He told the Board that the moneylender lent him money without asking him any questions about his background, working experience, past income, and his repayment ability.  But, according to the COI, the maximum amount of loan which a moneylender would lend without background check was only 100 million Dongs. The Board considered it implausible that the moneylender would have lent such a huge loan to him without any background check or to a borrower of his background.

8.  The Board also found the Applicant’s account of how he operated his pig farm implausible.  The Applicant told the Board that he rented a piece of land with no fixed term on which to run his pig farm and did not have to pay any deposit.  The terms of the tenancy were inconsistent with the usual terms in the rental market.  According to the COI, a tenant usually has to pay three months’ rental as deposit for commercial property or one to two months’ rental for residential property.  The Board also found his claim that he spent 400 million Dongs to erect a structure for operating his farm devoid of business sense or common sense for a tenancy with no fixed term.  It also found his claim that he ran his business for about 20 months without a bank account implausible.

9.  The Board found multiple significant discrepancies among his evidence in his non-refoulement claim form (“NCF”), his screening interview and his testimony before the Board.   For example, in the NCF, he said he borrowed 900 million Dongs at the monthly interest of 45 million Dongs.  But he told the Board that the 900 million Dongs he borrowed was inclusive of interest.  When he was referred to his NCF, he changed his evidence and said he had to pay 4 to 5 million Dongs per month as interest (not 45 million Dongs).  There are also other inconsistencies in his evidence about the assaults by the moneylender’s men and whether he reported the attacks to the police immediately or after he was discharged from the hospital.

10.  In view of the inconsistencies and implausibility in his account, the Board found the Applicant not a credible witness and that his evidence relating to the facts on which his claim was based questionable and unreliable.  It found his evidence about the loan entirely lacking in even the most basic levels of coherence, detail or fundamental credibility.  It had no doubt that his claim was a fabrication and that he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”). 

11.  Nevertheless, for completeness, the Board went further.  It made some further finding of fact on the basis of the case as he asserted.  It found the injuries suffered by the Applicant were minor and fell short of the minimum level of severity.  It found the threats arose from the Applicant’s private monetary dispute with the moneylender; that the moneylender and his underlings were non-state actors; that no public officials or persons able to wield the authority of the government and/or the state had any connection with the claim or had acquiesced in the ill-treatment of the Applicant; that the ill-treatment of the Applicant had no relevance to the interest and/or benefit of the government of Vietnam; and that the ill-treatment did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance.

12.  It found on the basis of the COI that the Vietnamese government was able and willing to afford protection to the Applicant, but it was the Applicant’s own volition not to seek protection from the state.  It also found the feared harm and risk of harm were localized to the Applicant’s home locality; that he could avoid the harm and risk by relocating to other cities or areas within Vietnam; and it would not be unreasonably harsh for him to do so.

13.  On the basis of his case and these further findings, it came to the conclusion that the risk of harm to the Applicant was low and his fear not well-founded.  It found, in particular, that his fear of persecution was not on account of any of the reasons enumerated in Article 1A(2) of the 1951 Convention relating to the status of refugees and its 1967 Protocol. Applying the law applicable to non-refoulement protection under the USM, it found the Applicant had failed to prove his entitlement to protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal.

Grounds for judicial review

14.  The Applicant advanced the following three grounds of application in his Form 86.  The Court has repeatedly seen such grounds of application in leave applications filed by Vietnamese claimants. These grounds are lacking in particulars.  It appears that these are format grounds adopted by claimants which may have no bearing to their case. 

15.  First, the Applicant argued that if returned to Vietnam, his life will be seriously threatened.  He will be tortured, beaten or even killed because the gangsters in Vietnam are cruel and violent.  The gangsters disregarded the law and were willing to kill to satisfy their anger and ferocity.  This is a direct challenge of the Board’s finding of fact that his life would not be at risk of any of the proscribed harm, if returned to Vietnam.  That is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision.

16.  Second, he disagreed with the Director’s suggestion that he could relocate to live in other location to avoid the gangsters because of his health, personality and the disadvantage he would suffer in the labour market.  For his benefit, the Court assumed that this complaint is directed at the Board. As indicated in paragraphs 145 to 155 of the Decision, the Board found the issue of internal relocation did not arise.  The Board’s finding on internal relocation was not necessary.  Even if it were, the argument now advanced based on the Applicant’s health, personality and other problems had never been advanced before the Board.  It is not open to the Court to take them into account. In paragraph 154 of its Decision, the Board found that it would not be unduly harsh for the Applicant to relocate to other cities of Vietnam to avoid the risk of harm from the moneylender.  That is also a finding of fact solely for the Board, which the court in a judicial review will not intervene, save for errors of law, procedural unfairness and irrationality in the Decision.  The Court will re-visit these issues in its overall scrutiny of the Decision.

17.  Lastly, the Applicant claimed that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is possible for the moneylender and gangsters to find him and harm him.  The Applicant had not advanced any such evidence before the Board. As was mentioned in the preceding paragraph, the Board found as a fact that he had failed to substantiate his claim that he would be at risk returning to Vietnam.  This is also not a valid ground.

18.  There is no substance in any of the grounds advanced.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

19.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  It researched extensively into authoritative and credible COI, in particular about moneylending practice in Vietnam.  It analyzed the evidence carefully and tested it against common sense, inherent probability and the COI.  It found the Applicant exaggerating and his evidence unreliable.  It made some necessary further finding of facts, including availability of state protection and internal relocation.  Then, applying the law applicable to non-refoulement protection under the USM to the above finding of facts, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

20.  For the above reasons, the Applicant’s leave application is refused.

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