NGUYEN NGOC AN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2357 /2019

[2025] HKCFI 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2357 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 9 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office 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 did not appear before the Court on 23 December 2024. I shall deal with his application on the papers.

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 53, is a Vietnamese. He last entered Hong Kong illegally on 14 July 2015 and he surrendered to the Immigration Department on 24 July 2015. He was arrested by the police on 11 November 2015 and was sentenced to imprisonment of 15 months on 26 November 2015 for using a forged identity card and taking up employment without the authority of the Director. The applicant made a non-refoulement claim on 8 August 2016, 11 August 2016 and 26 August 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”) because he failed to repay the loan owed to him.

5.  According to the applicant, he took out a loan from the creditor to startup his charcoal business. In around August/September 2011, one of his charcoal transport vessel sank during an accident. The applicant suffered great loss as a result and could no longer afford paying instalments to the creditor.

6.  The creditor had approached the applicant for loan repayment in early 2012 and July 2012, but agreed to extend the deadline on both occasions upon the applicant’s plea. By January 2013, as the applicant was still unable to make repayment, he was assaulted by the creditor and his underlings. The applicant suffered injuries as a result and was taken by his neighbours to a doctor. Around 20 days later, the creditor and his underlings came to look for the applicant at the doctor’s home. He managed to escape through the backdoor and hid in a shed for around two months, after which he fled to his friend’s home in Ho Chi Minh City. One day around two years later, his friend told him that the creditor and his underlings were spotted in the vicinity. Out of fear, the applicant left Vietnam for China on 10 July 2015 and eventually sneaked into Hong Kong from Shenzhen on 14 July 2015.

7.  The applicant had maintained contact with his brother and was informed that the creditor was still asking for his whereabouts. He was of the view that he could not seek protection from the police because they were corrupt and could easily be bribed by the creditor. He considered internal relocation not viable as well because he lacked the necessary financial capability and connection. He also feared that the creditor would be able to find him.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 25 October 2017 (“the Director’s Decision”).

The Director’s Decision

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

a. 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”);

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

c. 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”); and

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

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the past ill-treatment received by the applicant failed to attain the minimum level of severity [13]; (ii) the past conduct of the creditor and his underlings indicated that they had no real intention to seriously harm or kill the applicant [14]; (iii) there was no evidence showing that the creditor had the means to locate the applicant anywhere within Vietnam [15]; (iv) state protection would be available [16]-[18]; and (v) internal relocation would be viable [19]-[25].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. The hearing was originally scheduled on 28 February 2019, but was subsequently postponed to 9 July 2019 due to the applicant’s imprisonment [2]. During the hearing, the applicant made a new claim that the creditor had killed his wife and son in October 2018 due to his non-repayment of the loan [3].

12.  The Board noted from the country of origin information that the Vietnamese government had taken measures to tackle corruption and illegal debt collection activities [12]-[27]. Upon examination of the applicant’s evidence, the Board noted that his testimony given during the hearing was so inconsistent with that from his non-refoulement claim form (“NCF”), such that his new assertions were incapable of belief [45]-[51]. The Board also found his new claim regarding the murder of his wife and son simply a spontaneous concoction in response to the suggestion that the creditor had never hurt his family [52]-[53].

13.  On such basis, the Board rejected the applicant’s evidence tendered at the hearing. Taking into consideration of the NCF, the Board accepted that the creditor had threatened and wounded the applicant in the past, but found no evidence suggesting that he had the intention to carry out his threats [54]-[61].

14.  In any event, the creditor was merely acting in his personal capacity and that it was also inconceivable that he would ill-treat the applicant beyond the minimum level of severity under the current socio-political atmosphere in Vietnam. Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [62]-[97]. Furthermore, state protection and internal relocation would also be available [98]-[108].

15.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

16.  The applicant has filed Form 86 dated 15 August 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

18.  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).

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20.  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.”

21.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

22.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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