TRAN NGOC QUAN 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 19 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 20 May 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 was scheduled and notice of hearing was sent to him by post on 27 February 2026 to his address as stated in his Form 86, and to his last known address discovered from the Immigration Department on 6 February 2026.  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 64.  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 had borrowed one billion Vietnamese Dongs from a moneylender to start a fish farming business in February 2018 at a monthly interest of 30 million Dongs.  He was unable to pay the monthly interest after the first seven months.  The moneylender gave him until January 2020 to pay.  However, he could not pay because his fish farm was struck by a disease.  In April 2020, four of the moneylender’s men went to his home to demand repayment of the loan and outstanding interest.  They assaulted him and threatened him with death.  He suffered bruises all over his body and it took him a month to recover.  In May 2020, he saw the moneylender’s men armed with knives and a sword heading towards his house.  Out of fear, he fled and moved from place to place to avoid the moneylender.  Eventually, he fled to Mainland China in December 2020.  From there, he sneaked into Hong Kong.

The finding of the Board

5.  The Applicant testified before the Board.  The Board found multiple significant discrepancies among his evidence in his non-refoulement claim form, his screening interview and his testimony before the Board, such as the amount he spent in constructing the fish ponds and buying fish fry; whether his wife worked in farming fish or in growing vegetables.  When confronted with the discrepancies, he was unable to explain.  The Board tested his case against independent and credible country of origin information (“COI”).  It found the interest charged by the moneylender was unlawful being six times that charged by banks.  It also found the loan borrowed was equivalent to 14 years’ income of the average worker in Vietnam.  The Applicant was unable to explain why he did not borrow from a bank using his land as security, but borrowed from the moneylender at six time the interest.   It found the Applicant’s case implausible.  He had no experience in fish farming.  The operation of his business was irrational.  His business would have no income during the first 18 months of operation while the fish fry were growing up.  During those eighteen months, he had to incur operational expenses and pay interest at the rate of 30 million Dongs per month.  In view of the conflicting and irrational aspects of the Applicant’s evidence, the Board considered his fear of being tortured, ill-treated or killed on his return to Vietnam to be exaggerated and unreliable.  It also found the Applicant could mitigate the risk of harm by seeking state protection and by internal relocation.  It was not satisfied that the Applicant had proved his entitlement to protection.  Hence, it dismissed his appeal.

Grounds for judicial review

6.  The Applicant did not advance any grounds for judicial review in his Form 86 or supporting affirmation.  He did not attend the hearing and forwent his opportunity to have the Court’s assistance in exploring respond to the Court’s letter dated 24 September 2024 inviting for submission.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

7.  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 Unified Screening Mechanism (“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 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

8.  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