Nguyen Ba v. V. Torture Claims Appeal Board

HCAL 117/2020

[2025] HKCFI 1358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 117 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 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 Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2.  The applicant’s application to withdraw the Leave Application be refused.

3.  The applicant’s application for leave to apply for judicial review in respect of both the decision of the Torture Claims Appeal Board dated 27 December 2019 and the decision of the Director of Immigration dated 10 October 2017 be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 10 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 27 December 2019 (“the Board's Decision”) and the decision of the Director of Immigration (“the Director”) dated 10 October 2017 (“the Director's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000117_2020_files/the_Board's_Decision.pdf

2.The Board decided that the applicant’s claim failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director's Decision accordingly.

Amendments

3.The applicant named both the adjudicator of the Board and the Director as putative respondents but named no putative interested party in Form 86, when the Board should be named as the putative respondent and the Director the putative interested party. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

The Director’s Decision

4.The applicant identified both the Board’s Decision and the Director’s Decision as the decisions in respect of which relief is sought. However, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant has invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022).

5.In the circumstances, the Leave Application regarding the Director’s Decision is dismissed. This court will consider the Leave Application in respect of the Board’s Decision as discussed below.

The applicant’s case

6.The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)  The applicant is a male national of Vietnam born on 4 January 1983 in Huyen Tien Lang Thanh Pho, Haiphong, Vietnam. He had 12 years of formal education. He worked in a company in the transportation sector for five years. He ran his own construction materials business before he left his home country.

(2)  The applicant claimed that he may be harmed or killed by two moneylenders named Pham Viet Dung and Nguyen Ba Tuyen (collectively “the Moneylenders”) because of his inability to repay two loans of VND 1.5 million each to the Moneylenders.

(3)  From December 2013, the Moneylenders demanded payment from the applicant almost every day. Once, three gangsters attacked him at his parents’ house. His left hand and arm was cut by a knife and bled profusely, and the men threatened to kill his entire family if he failed to repay the debt.

(4)  The applicant sneaked into Hong Kong from Shenzhen, China around 24 August 2014. He was arrested by the Hong Kong police on 30 August 2014 and was transferred to the Immigration Department the following day. He also revealed that he tried to sneak into Hong Kong from Guangzhou in September 2011 but was repatriated to Hanoi on 19 December 2011.

(5)  The applicant first claimed asylum on 5 September 2014 and submitted his Non-refoulement Claim Form dated 8 September 2017. He attended a screening interview on 29 September 2017 at which he was legally represented.

(6)  The Director rejected the applicant’s non-refoulement claim on all the applicable grounds under the USM on 10 October 2017, and the applicant filed an appeal/a petition against that the Director’s Decision on 24 October 2017. As aforesaid, the Director’s Decision was confirmed by the Board’s Decision.

Grounds for judicial review

7.The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

8.The applicant did not advance any ground for his intended judicial review in Form 86. However, in his supporting affirmation dated 10 January 2020, the applicant annexed the following two grounds for his intended judicial review:-

(1)  Procedural impropriety

The Director and the adjudicator of the Board did not raise sufficient questions to the applicant and/or obtain sufficient understanding from the applicant concerning his case and the situation in Vietnam. As a result, the Director and the adjudicator of the Board made their decisions in the circumstance where they did not have a thorough understanding of the risks involved in his case and the prevailing situation in Vietnam; and

(2)  The Board’s Decision and the Director’s Decision were unreasonably made

The Director and the adjudicator of the Board made unreasonable decisions without thoroughly taking into account all the evidence adduced by the applicant, including but not limited to his case details and his personal experience expressed during the interview/hearing, the country of origin information (“the COI”) and/or the new evidence provided by him before the hearing. The adjudicator of the Board also understood his case wrongly (eg the adjudicator of the Board stated that the applicant did not face any real and/or substantial risk to life, but the applicant clearly pointed out his risk of being pursued by gangsters, as evidenced by the scar on his arm).

Withdrawal at the oral hearing

9.The applicant requested for an oral hearing for the Leave Application and his case was heard on 11 March 2025.

10.At the hearing, the applicant informed this court that he has already obtained his Hong Kong Identity Card in 2022. Thus, he applied to withdraw the Leave Application.

11.There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application. Apart from making the withdrawal application, the applicant had nothing further to say at the hearing.

12.The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

13.Thus, it is right for this court to deal with the Leave Application instead of granting leave to the applicant to withdraw the Leave Application. It is just not right to leave the action at large by granting leave to withdraw to the applicant.

14.The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application in respect of the Board’s Decision.

Discussion

15.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

17.The first ground for judicial review raised by the applicant is a bare assertion. The applicant did not give any particulars as to what further questions the Board should have asked or in respect of which aspect of his case or risk the Board had misunderstood. The applicant also did not state what prevailing situation in Vietnam the Board should have considered. Without all these particulars, it is difficult to see how the alleged procedural impropriety can be established.

18.As to the second ground for judicial review, the applicant gave only one example of the evidence that the Board had allegedly misunderstood, ie the scar on his arm. There were no other particulars given as to what case details, his personal experience, the COI and/or the new evidence provided by him that the Board had failed to consider thoroughly.

19.The Board had clearly considered the alleged assault on him by the gangsters and the scar on his arm (see paragraphs 11, 12 and 51 to 54 of the Board’s Decision). The Board in fact concluded that even assuming that the applicant’s story was true, the single attack, from which the applicant already recovered, did not attain the minimum level of severity required by law.

20.It seems that the applicant is trying to challenge the Board’s finding of facts, but that is not permissible in judicial review. As aforesaid, this court can only intervene for errors of law, procedural unfairness, or irrationality.

21.For the sake of completeness, this court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness, and irregularities.

22.In assessing the appeal/petition by the applicant, the Board held a hearing on 9 May 2019. The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person.

23.The Board found that the applicant’s evidence in relation to the key features of the alleged loans was full of contradictions, and when questioned, he could barely explain the financial information with any certainty with respect to, inter alia, how much he owed the Moneylenders, how much interest was paid, and what the total outstanding amount was.

24.Apart from having difficulty showing why he started a business in the construction materials business when he was trained in mechanical work and describing any details about his business, the applicant had provided unclear evidence as to whether the attack was initiated by the Moneylenders jointly or by one of them, as they were separate loans.

25.The Board identified further inconsistencies in his evidence about his encounter with a person named Hung, who arranged for him to work in Mong Cai.

26.As such, the Board rejected his claims for being groundless and fanciful.

27.In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had specifically made clear that the COI findings presented by both the Director and the lawyer representing the applicant, as well as other updated information about Vietnam (see paragraph 41 of the Board’s Decision) were considered. While noting the problem of corruption and the widespread of illegal loan shark activities in Vietnam, there was evidence from the COI that showed the authorities has enhanced their action in cracking down loan sharks and further to proactively prevent and strictly handle loan shark related crimes.

28.The Board considered that the applicant should be able to obtain assistance from the police and authorities if he needed it. The applicant’s assertion that the police would not help him was just the applicant’s speculation. The applicant has never sought assistance from the police when he was in Vietnam.

29.The Board also considered the viability of internal relocation of the applicant. The Board found that the applicant’s reasons for not being able to relocate involved economic reasons rather than his inability to relocate due to the widespread nature of the threat. Thus, the Board concluded that the applicant could safely relocate to other places within Vietnam without undue hardship.

30.The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

31.The Board also re-assessed the applicant’s claim on all the applicable grounds under the USM, namely:-

a.  risk of torture under Part VIIC of the Immigration Ordinance;

b.  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

c.  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

d.  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

32.After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant’s feared ill-treatment, risk of right to life, risk of torture and risk of persecution could not be established. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the aforesaid applicable grounds.

33.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

34.The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application in respect of the Board’s Decision must also be dismissed.

Conclusion

35.For reasons aforesaid, the Leave Application (in respect of both the Board’s Decision and the Director’s Decision) is dismissed.

Dated the 10^th day of April 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