NGUYEN DINH THI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2359/2019

[2025] HKCFI 203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2359 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 July 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. However, he was absent at the hearing 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 42, is a Vietnamese. He last entered Hong Kong illegally on 9 March 2015. On the same day, he surrendered to the Immigration Department and made a non-refoulement claim. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”), who had triad background, because he failed to repay the loan owed to him.

5.  According to the applicant, he took out a loan from the creditor in 2012 to startup his property business. The applicant claimed that he bought agricultural lands and then applied to the government for change of land use so that he could build houses on them. Yet, his application was turned down while the price of his agricultural lands also fell due to economic recession. As a result, he could no longer afford paying instalments to the creditor.

6.  Since June 2012, the applicant was assaulted twice at his home by the creditor and his underlings. He was hospitalised on both occasions, during which he continued to receive threats from the creditor. Although he reported the matter to the police, no action was taken by them. Thereafter, the applicant fled to Ho Chi Minh City and stayed with his friend. His first attempt to enter Hong Kong on 3 January 2014 was unsuccessful and he was repatriated on the following day. Subsequently, after being informed by his friend that the creditor had come over to look for him, the applicant entered Hong Kong illegally from Shenzhen on 23 September 2014. He was arrested by the police on the following day and was repatriated to Vietnam in November 2014. In early 2015, upon learning that the creditor was looking for him at his hometown in Hanoi, the applicant left Vietnam for China on 3 March 2015 and then sneaked into Hong Kong from Shenzhen again on 9 March 2015.

7.  The applicant was of the view that he could not seek protection from the authorities because they were corrupt. He also considered internal relocation not viable because the creditor was still able to find him despite he moved from Hanoi to Ho Chi Minh City.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 12 October 2017 (“the Director’s Decision”).

The Director’s Decisions

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 conduct of the creditor and his underlings indicated that they had no real intention to seriously harm or kill the applicant [12]; (ii) there was no evidence showing that the creditor had the means to locate the applicant anywhere within Vietnam or that he was in anyway connected to the Vietnamese authorities [13]-[14]; (iii) state protection would be available [15]-[19] and (iv) internal relocation would be viable [20]-[24].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 9 May 2019, the Board conducted a hearing.

12.  The Board considered it implausible that the applicant would apply for travel documents in Hanoi while he was living in Ho Chi Minh City [92]-[94]. It was also implausible the creditor would look for the applicant in Hanoi when he knew he was hiding in Ho Chi Minh City [95]-[96].

13.  Regarding the applicant’s business, the Board found he gave inconsistent evidence as to the period he ran his business [97]-[100]. The applicant also lacked relevant knowledge about the procedure of land transaction in Vietnam [102]-[110] and that his evidence about land conversion was inconsistent with the country of origin information (“COI”) [111]-[114].

14.  As to the claimed loan, the Board considered it implausible that the creditor would lend such a large sum of money to the applicant for starting up his business given his background, working experience and past income [119]-[125]. The interest rate charged by the creditor was also inconsistent with the COI [126]-[129].

15.  The fact that the applicant did not seek non-refoulement protection in China further damaged his credibility [133].

16.  The Board found the applicant not credible and that his claims could be given no credence. In light of the applicant’s background, employment history, past income and lack of basic knowledge relating to his business, the Board did not accept that he had borrowed a large sum of money from the creditor to startup a business and considered this simply to be a fabrication [136]-[140], [181]-[183].

17.  Based on such findings and given that there was no evidence of involvement from the Vietnamese government in the matter while the claimed ill-treatments also failed to reach the requisite level of severity, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [147]-[167], [187]-[190]. In any event, state protection [141]-[145], [184]-[185] and internal relocation [168]-[180], [186] would also be available to the applicant.

18.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

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

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

DISCUSSION

21.  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).

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

23.  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.”

24.  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.

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

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

DISPOSITION

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