Dang Tuan Son v. Torture Claims Appeal Board

HCAL 2550/2024

[2025] HKCFI 1174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2550 OF 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 27 January 2023 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 52-year-old national of Vietnam who had in the past 10 years repeatedly entered Hong Kong illegally to allegedly avoid threats from his creditors over his unpaid debts and was inevitably repatriated to his home country upon his arrest, again on 2 July 2020 entered Hong Kong illegally, and on 7 September 2020 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditors over their latest monetary disputes. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Hai Duong City, Vietnam. After leaving school he worked as a construction worker to make his living, and raised a family of 2 children with his girlfriend in his home district.

3.In 2010 he and his girlfriend started their own seafood business with the help of various loans borrowed from several local money-lenders with monthly interests payments which they initially managed to make from their business income.

4.However, their business did not fare well, and when the Applicant started to default with the loans repayments, his creditors sent men to threaten him and his girlfriend, and after suffering from several beatings by those men, his girlfriend fled from their home district into hiding, while the Applicant also in December 2010 departed Vietnam for China, and from there he then sneaked into Hong Kong but was soon arrested by police and was repatriated to Vietnam in March 2011.

5.As the threats from his creditors still persisted, the Applicant in December 2011 left Vietnam again for China and then sneaked into Hong Kong again, and upon his arrest by the police he was repatriated to Vietnam in January 2012.

6.In March 2015 the Applicant sneaked back into Hong Kong, and upon his arrest by the police he raised a non-refoulement claim for protection, and after it was subsequently rejected by the Director of Immigration (“Director”), he was again repatriated to Vietnam on 20 February 2019.

7.Upon returning to his home district, and in order to make his living, the Applicant again started another seafood business by borrowing loans from 2 local money-lenders who were different from his previous loans, and again when his business failed and when he was threatened by his 2 creditors over his outstanding loans, the Applicant on 28 June 2020 departed Vietnam for China, and from there he again sneaked into Hong Kong and raised another non-refoulement claim for protection based on fear of harm from the 2 creditors over his latest debts, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 June 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

8.By a Notice of Decision dated 20 October 2021 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non‑derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditors upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditors to seriously harm or kill him other than to press him to repay his loans, that in any event these were private monetary disputes between him and his creditors only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 102 million people spread across a vast territory of more than 310,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditors to locate him.

10.On 28 October 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 1 June 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 January 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board did not raise any issue with the Applicant’s claim of fear of harm from his creditors over his unpaid debts but found no reliable evidence of any real intention of his creditors to seriously harm or kill him other than to press him to repay his debts, and that in any event these were private monetary disputes between him and his creditors only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his creditors that his claim for non-refoulement protection failed on all applicable grounds.    

12.On 19 December 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from the killings that he may face if deported back to his home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7) That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.     

13.By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

14.As the last day of the three-month period for him to file his Form 86 fell on 27 April 2023, the Applicant was therefore more than 1 ½ years late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicant’s case, a delay of more than 1 ½ years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, nor was he able to do so at the hearing of his application, and as the record shows that the Board’s decision was sent on the same day of 27 January 2023 to the Applicant’s then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.      

16.As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence to the Applicant’s case when on the factual basis of even his own case that it was a private monetary dispute between him and his creditors only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

17.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                 

19.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 27^th day of March 2025

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