PHAM SON TUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 740/2022

[2026] HKCFI 3056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 740 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 9 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 2 August 2022 (the “Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 April 2021 (the “Notice”) refusing his application for non‑refoulement protection. 

2.  The Applicant had requested an oral hearing.  A hearing on 13 May 2026 was scheduled and notice of hearing was sent to him by post to his address as stated in his Form 86 and his up-to-date address as discovered from the Immigration Department on 10 March 2026.  The Notice has not been returned through the post.  The Applicant had never informed the court of any change of address.  There is nothing to suggest that he had not received the letter or had moved.  On the afternoon of the day before the hearing, a court staff attempted to contact him by telephone to remind him of the hearing, but the call was not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that it had tried its best endeavour to bring the hearing to his notice.  He did not appear at the hearing.  Having also considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court is satisfied 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, now aged 33.  He had received 15 years’ education and had five years’ working experience as a crane operator and worker in a golf course.  He was arrested by the police on 31 August 2020 claiming to have sneaked into Mainland China from Vietnam on 10 February 2020 and then sneaked into Hong Kong on 25 February 2020.  He lodged a non-refoulement claim on 14 September 2020.  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.

4.  The Applicant’s case as advanced in his non-refoulement claim form (“NCF”) is as follows.  He started a business selling electrical goods in September 2019.  In December 2019, he borrowed US$60,000 from a moneylender for a term of one year at a monthly interest of about HK$30,000 to ease his cash flow problem.  After paying the first instalment of interest, he was unable to pay anything.  In December 2019, he was approached by three strangers claiming to be the moneylender’s henchmen and demanded payment.  They assaulted him and chopped his leg.  He managed to escape.  He went to a hospital for treatment.  His wound was stitched.  He was discharged on the same day.  On 10 February 2020, he took a bus to Mong Cai.  He sneaked into Shenzhen on 11 February 2020 and then sneaked into Hong Kong on 25 February 2020.

The Board’s finding

5.  The Applicant testified before the Board.  The Board found numerous internal inconsistencies among his evidence in his NCF, record of screening interview (“ROI”), written signification and his testimony before the Board.  Much of the information he gave in his testimony had not been mentioned in his NCF or ROI.  His account is inconsistent with the country of origin information (“COI”).  These inconsistencies are discussed in pages 26 to 31 of the Board’s Decision.  For example, in his NCF he said he sold electrical appliances.  In his testimony, he said specifically that he was a wholesaler and he bought electrical appliances from a manufacturer in Mong Cai.  Later, he said he had not bought new goods but bought second hand goods.  He said he was also a retailer.  He gave two different versions of the size of his storage facility.  In his NCF he said he needed the loan for “cash flow problems”.  But he told the Board that he used the loan to buy “family used goods” which he explained as meaning “frozen meats”.  He said he had cash flow problems because his customer bought on credit but did not pay.  The Board considered his evidence illogical as his cash flow problem would not have arisen until after he had obtained the loan to buy “family used goods”.

6.  His testimony about the loan is vague and confusing.  In his NCF he said that the principal was US$60,000 at a monthly interest of HK$30,000. In his testimony, he said that the principal and interest were mentioned in Vietnamese Dongs and the principal was 1,800 million Dongs, but he was advised by a friend in Hong Kong to express the amounts in US dollar and Hong Kong dollar.  There is a 26 percent difference between US$60,000 and 1,800 million Dongs.  He also said in his testimony that the interest was at a daily rate of 7% of the principal and not a monthly rate of HK$30,000.

7.  He gave different accounts as to whether his parents were threatened and the injuries he suffered in the only attack he had before leaving Vietnam.

8.  The Board found the Applicant incredible and rejected his evidence that he had started a business selling electrical appliances in September 2019, borrowed 1,800 million Dongs from the moneylender in December 2019, that he defaulted in interest payment in December 2019, that he was confronted by three of the moneylender’s henchmen who assaulted him and wounded one of his legs, and that he sneaked into Hong Kong because of fear of his life.  The Board practically rejected the entirety of his account.

9.  On the basis of authoritative and credible country of origin information (“COI”), the Board found the government of Vietnam is willing and able to provide effective protection to its citizens.  It also found that the Applicant can reasonably live without fear of the alleged harms and undue hardship if he relocates to other areas such as Ho Chi Minh City, Ha Noi and Nha Trang.

10.  Applying the law applicable to non-refoulement protection to the above facts, the Board found there is no real risk that the Applicant will experience harm, or persecution or be at risk of violation of right to his life if he were removed to Vietnam and that if there is any risk it may be mitigated or avoided by seeking state protection and internal relocation.  It came to the conclusion that 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

11.  The Applicant had advanced three grounds in his supporting affirmation:

12.  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 are cruel and violent.  He also submits that they disregard the law and are willing to kill to satisfy their anger and ferocity.  This is a direct challenge, in the first place, of the Board’s finding of fact that there is no real risk that the Applicant will experience harm, persecution or violation of right to life if he were removed to Vietnam; and in the alternative that state protection and internal relocation are available to mitigate or avoid the risk of harm.  It is not open to the court in an application for judicial review to intervene in such finding of fact by the Board.

13.  Second, the Applicant disagrees with the Director’s suggestion that he could relocate to live in other locations to avoid the moneylender because he could not find employment in the new location owing to his health, personality and the disadvantage he would suffer in the labour market.  For his benefit, the Court assumes that this complaint is directed at the Board.  The Board had considered the issue of internal relocation in depth in paragraphs 168 to 174 of its Decision and referred the Applicant to country information of a number of cities to where he may safely relocate, including Ho Chi Minh City, Ha Noi and Nha Trang.  The issue of his health, personality and his lack of competitiveness in the labour market had not been raised by the Applicant in his testimony.  It is not open to him to advance these new issues which did not form part of his claim. 

14.  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 his home area.  In paragraph 174 of its Decision, the Board found there was no objective, independent and reliable evidence that the moneylender and his underlings are able to locate the Applicant within the mass population in the three cities or anywhere in Vietnam.  This ground is also challenge of the Board’s finding of fact, which is impermissible. 

15.  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

16.  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 personal background, the Board rejected almost the entirety of his case.  Practically, the Applicant has no factual basis to support his claim for protection under any of the applicable grounds under the USM.  Applying the law applicable to non-refoulement protection to the facts it found and the COI, the Board was not satisfied that the Applicant had proved his entitlement to protection under any of the applicable grounds under the USM.  It found further and in the alternative that, such harm if there were any, could be mitigated or avoided by seeking state protection and internal relocation.

17.  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 in 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

18.  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