MAI VAN HUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 748/2022

[2026] HKCFI 3051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 748 of 2022

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 Applicants’ application by Form 86 filed on 10 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 27 June 2022 (the “Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 August 2021 (the “Notice”) refusing his application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is a Vietnamese national, now aged 30.  He had received secondary school education, completed three years’ national service, had worked in a factory and had taken up self-employment.  He entered Hong Kong illegally on 11 June 2020.  He was arrested by the police on 12 October 2020 and referred to the Immigration Department.  On 6 November 2020, he made a claim for non-refoulement protection by written signification.  His personal background, the factual background leading to the present application, the basis of his claim, 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.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims, if returned to Vietnam, he will be harmed or killed by a moneylender for being unable to repay the loan he had borrowed from the moneylender.

3.  The Applicant’s case as advanced by him in his non-refoulement claim form and record of his screening interview (collectively, the “original information”) is as follows.  In 2016 he borrowed 1,000 million Vietnamese Dongs (“Dongs”) from a moneylender with triad background, 500 million Dongs from a bank and some other sums from his relatives to build a boat for fishing.  He employed five people.  At first, his business went well.  He was able to repay the loans from the bank and his relatives.  Then, his boat sunk in a typhoon in August 2017.  He became unable to repay the loan owed to his moneylender.  He was attacked by the moneylender and his underlings on six occasions.  On the last occasion in October 2017, he was chopped and slashed.  He was hospitalised.  He did not report the attacks to the police because he was scared and he believed the police would not take any action.  Also, the moneylender had warned the Applicant that he had police connections.  After his discharge from the hospital, the Applicant moved to Da Nang to evade the moneylender. He worked in a shoe factory.  Nothing eventful happened and he never encountered the moneylender or his underlings.  However, the loan was due in 2020 and interest had accumulated to a level that he could not pay.  He believed the moneylender would not let him off easily as the moneylender continued to look for him and regularly went to his parent’s house asking for his whereabouts.  He said he would continue to be in danger as long as he was in default of payment.  Then, in about June 2020, he left Vietnam for China and from there he sneaked into Hong Kong.  In answer to the Board’s question, he said someone had reported his whereabouts to the moneylender.

The Board’s finding

4.  The Applicant testified before the Board.  The Board considered his account consistent with the original information he had given.  It considered the Applicant open and straightforward in his evidence and found him credible.  It accepted his evidence, except for one issue.  It did not accept his answer to the Board that his whereabouts had been reported by someone to the moneylender.  The Board considered it significant that this information was not included in his original information, but arose in answer to the Board’s question.  The Board noted that in his original information, the Applicant had said that by 2020 the loan and interest had accumulated to a level that he could not pay, that he believed the moneylender would not let him off easily, that the moneylender continued to look for him and was regularly asking his parent’s for his whereabouts and that he had said he would continue to be in danger as long as he was in default.  Further, the Board also noted that in his Notice of Appeal he had said that he did not want to live in hiding for the rest of his life and that essentially, he felt unsafe and he was continuously anxious and stressed and lived in a state of fear.  After taking all these evidence into account and after having warned itself that it is quite possible for the centrepiece of an appellant’s claim to stand despite the presence of some exaggeration, uncertainty or even untruthfulness, the Board did not accept that the moneylender had discovered the Applicant’s whereabouts.

5.  On the basis of authoritative and credible country of origin information (“COI”), the Board found despite that corruption exists in Vietnam, the Vietnamese government is determined to fight corruption and has conducted reforms.  The COI indicates that the police may proactively seek out loan sharks and crack down on illegal moneylending.  It found Vietnam appears to be both willing and able to offer effective protection, though reports of corruption amongst the police with impunity remains a problem.  It also found internal relocation a viable option for the Applicant to avoid the risk of harm from his moneylender.  It was not satisfied that the Applicant would face a real chance of serious harm or a real risk of significant harm if he relocates to other areas on his return to Vietnam, including for example, Da Nang where he had lived safely for three years before coming to Hong Kong.

6.  The Board found on the basis of the Applicant’s evidence that the injuries or mistreatment he suffered were not inflicted by any state official acting in an official capacity or for the purposes of section 37U(1) of the Immigration Ordinance, that the mistreatment did not attain the minimum level of severity, and that  he would not face a genuine and substantial risk of being subjected to such mistreatment.  It found his dispute with the moneylender is a private monetary dispute and that his feared ill-treatment did not arise on account of any of the reasons enumerated in 1954 Convention relating to the status of refugees and its 1967 Protocol (“Convention reasons”).  Applying the law applicable to non-refoulement protection to the above facts and its other finding of facts as set out in more details in paragraphs 77 to 93 of the Decision, the Board found the Applicant had failed to establish his entitlement to protection under any of the four applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

Grounds for judicial review

7.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  However, he had advanced the following three grounds in his supporting affirmation:

8.  First, he submits that if returned to Vietnam, his life will be seriously threatened.  He will be tortured, beaten or even killed because the moneylender and his underlings in Vietnam are cruel and violent.  They disregard the law and are willing to kill to satisfy their anger and ferocity. This is a direct challenge of the Board’s finding of fact that he has failed to discharge the burden of proving that he would face a genuine and substantial risk of being subjected to mistreatment which attains a minimum level of severity on his return to his home country.  That is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision.  In particular, the Board had found in paragraph 65 of its Decision that the State of Vietnam appears to be both willing and able to offer effective protection state protection to its citizens.  It was the Applicant’s own evidence that he did not seek assistance from the authorities.

9.  Second, the Applicant disagrees with the Director’s suggestion that he could relocate to live in other locations to avoid the moneylender. For his benefit, the Court assumes that this complaint is directed at the Board. He submits that is infeasible because he could not find employment in the new location because of his health, personality and that the disadvantage he would suffer in the labour market.  The Board had discussed the issue of internal relocation with him in depth in paragraphs 68 to 76 of its Decision and referred him to country information oft a number of cities to where he may safely relocate, including Da Nang where he had lived and worked for nearly three years before going to Hong Kong.  During the discussion, the issue of his health, personality and his competitiveness in the labour market had not been raised by the Applicant.  In paragraph 74 of its Decision, the Board found there is no reason why he should not be able to find some employment in order to subsist while he resettles, with some assistance from his family.  It further found, having regard to the COI and the Applicant’s background and work experience, that he should be able to find work and even eventually save enough money to at least start to repay his moneylender if he wishes to.  This ground is also a challenge against the Board’s finding of fact, which is impermissible.

10.  Lastly, the Applicant claims 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 his underlings to find him out and harm him.  The Board had also considered this very issue of risk of harm from the moneylender and his underlings locating the Applicant outside the home area.  It found in paragraph 74 of the Decision that there was no persuasive evidence that the moneylender had the necessary connections across the country to locate him and harm him.  In support of its finding, the Board referred to the Applicant’s own evidence that he was safe in Da Nang for nearly three years without being harmed.  It was therefore not satisfied that the Applicant would face any real chance of serious harm or real risk of significant harm if he relocates to other cities upon his return to Vietnam now or in the foreseeable future.  This ground is also a challenge of the Board’s finding of fact, which is impermissible.

11.  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 and irrationality in the Decision.

Overall scrutiny

12.  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.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and COI.  Except for his claim that somebody had reported his whereabouts to his moneylender, the Board accepted the entirety of the Applicant’s account.  It made certain necessary finding of facts on the basis of the Applicant’s account and the COI.  Applying the law applicable to non-refoulement protection to the facts it found, the Board was not satisfied that the Applicant had proved his entitlement to protection under any of the applicable grounds under the USM.

13.  The Board’s finding 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

14.  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

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