Nguyen Huu Son v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2751/2019 on BabelCite. This High Court CFI judgment was delivered on 22 May 2025.
1. This is an application by Mr. Nguyen Huu Son (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 13 September 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 7 May 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).
Cited by 2 cases · Cites 8 cases
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HCAL 2751/2019 [2025] HKCFI 2144 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2751 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observation for the Applicant: Introduction 1.This is an application by Mr. Nguyen Huu Son (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 13 September 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 7 May 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”). Background of the Applicant and the NRC 2.The Applicant is a Vietnamese born on 24 June 1999 in Phuc Le, Vietnam. His parents (“Parents”) were fishermen. He had an elder brother (“Brother”). He had received 6 years of education and did not have any work experience. 3.The Applicant claimed that in 2015 Parents borrowed Vietnamese Dong (“VND”) 300 million (“Loan”) from a moneylender (“Lender”) in Vietnam but he did not know the background of the Lender nor the details of the borrowing. 4.In April/May 2015, the Lender together with 2 underlings came to the Applicant’s house with iron rods to chase Parents for repayment of the Loan. Parents promised to repay the Loan in July 2015. The Lender and his underlings left without causing harm to any of the Applicant’s family members. 5.In May/June 2015, the Lender and his 2 underlings came to the Applicant’s home again with iron rods to chase Parents for repayment of the Loan. When Parents were unable to repay, the Lender instructed his underlings to vandalize the Applicant’s home. The Lender threatened to beat up Parents if they still failed to repay when he came next time. They then left without causing harm to any of the Applicant’s family members. 6.The Applicant said that Parents sold their fishing boat and fishing equipment to repay part of the Loan and left home in July/August 2015 to find employment. They never returned home and the Applicant had lost contact with them since then. 7.In August 2015, the Lender and his 2 underlings came to the Applicant’s home again to chase for repayment of the Loan. The Applicant was at home by himself. He told the Lender that Parents were not at home. The Lender then took the valuables found in the Applicant’s home and threatened to harm the Applicant if Parents were still not there when he came the next time. They then left without harming the Applicant. 8.The Lender and his 2 underlings came again in December 2015 when only the Applicant and Brother were at home. When the Applicant told them that Parents had not returned home since July 2015, they attacked the Applicant and Brother with iron rods. Both the Applicant and Brother suffered injuries but Brother managed to escape. The Applicant had lost contact with Brother since then. The Lender threatened the Applicant that they would kill the Applicant if the Applicant made report to the police. They then left. 9.The Applicant did not attend hospital for treatment for his injuries as it was too expensive for him. He stayed at his home until February 2016 to recover. In February 2016, he decided to leave home. He hid in different places around Hai Phong and made his living by begging. In May 2016, his parental aunt financed him to leave Vietnam. He went to Mong Cai and was told that he could seek protection in Hong Kong. He then engaged an agent who arranged him to go to Mainland China with China permit. From the Mainland, he came to Hong Kong on 10 June 2016. 10.The Applicant surrendered to the Immigration Department on 30 June 2016 and lodged a non-refoulement protection claim (“NRC”) by written representations dated 29 May and 30 June 2017. He withdrew the NRC on 26 July 2018 but raised his non-refoulement claim (i.e. the Claim) again by letters dated 26 January and 5 February 2019. 11.The Applicant claimed that the Lender would harm or even kill him upon his return to Vietnam because Parents borrowed but failed to repay the Loan. 12.The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:
13.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal. 14.On 19 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party. 15.Although the DOI Decision and the Board’s Decision were issued in Chinese, the Applicant filed the Form 86 and the Supporting Affirmation in English. I decided to issue this judgment also in English. Legal principles applicable to judicial review 16.In a judicial review, the court does not step into the shoes of the decision makers. 17.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
18.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 reasonably arguable claim which enjoyed realistic prospects of success. Discussion 19.The Applicant did not put forward any grounds for his intended judicial review in the Form 86 or the Supporting Affirmation. He only exhibited the Board’s Decision without other supporting documents to the Supporting Affirmation. 20.The Applicant failed to attend the court hearing scheduled for 10 April 2025 despite notice of hearing dated 17 March 2025 having been sent to him and not being returned. The Applicant had also failed to respond to a previous letter dated 18 February 2025 sent by the court to him inviting him to submit his submissions to the court. As such, I decided to proceed to deal with the Applicant’s application for leave for judicial review of the Board’s Decision according to the papers placed before the court. 21.In §§21-60 of the Board’s Decision, the Board discussed the Applicant’s evidence given at the hearing before the Board in some details. The Board found substantial contradiction and inconsistencies between the Applicant’s evidence provided to the Board and that provided to the Director. The Board did not accept that Parents had borrowed the Loan or that the Applicant had been assaulted or threatened by the Lender. The Board found the Applicant’s evidence incredible and thus there was no evidence in support of the Claim. 22.For reasons set out in §§64-81 of the Board’s Decision, the Board was of the further view that even accepting the Applicant’s evidence given to the Director, the Applicant still failed to establish his claim under any of the applicable grounds under the USM. 23.After considering the relevant country of origin information (“COI”), the Board found that reasonable state protection would be available to the Applicant if he were returned to Vietnam and that internal relocation to other places in Vietnam was viable for the Applicant. (§§82-91 of the Board’s Decision) 24.No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 25.Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 26.The Board found the Applicant’s various accounts of event not credible and rejected them as untruthful. The Board did not accept that Parents had borrowed the Loan or the Applicant and Brother had been ill-treated or threatened as alleged. 27.The Board further found that even the Applicant’s own evidence did not show that the Lender intended to inflict serious harm on him. The alleged ill-treatment did not attain a minimum level of severity and the Vietnamese government was not involved. The Board assessed the risk of the Applicant being harmed or killed by the Lender or his underlings upon the Applicant’s return to Vietnam to be low. (§§64-69 of the Board’s Decision) 28.In §§64-81 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM. 29.The Board found that there was no evidence showing that the Applicant would face the proscribed risks of harm if he were to return to Vietnam. The alleged ill-treatment did not attain a minimum level of severity. There was no evidence to show that the Applicant would be arbitrarily deprived of his life in violation of BOR 2 if he were refouled to Vietnam. The dispute with the Lender was not one of the subject matters referred to in the Refugees Convention. The Board also found that reasonably sufficient state protection would be available to the Applicant in Vietnam and internal relocation viable for him. 30.It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success. Conclusion 31.In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review. Dated the 22nd day of May 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
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Cases cited in this judgment