Le Minh Hieu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1512/2020

[2025] HKCFI 2322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1512 of 2020

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 To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 16 July 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 9 July 2020 dismissing his appeal against the decision of the Director of Immigration refusing his application for non-refoulement protection.  

2.The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing.  Accordingly, the Court proceeded to make the following determination.

The Applicant’s case

3.The Applicant is a Vietnamese national, now aged 28.  He left Vietnam for Hong Kong via Mainland China in July 2018.  He was arrested in Hong Kong on 26 August 2018 for having committed a criminal offence.  He lodged his application for non-refoulement protection.  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4].  It was rejected by the Director’s Notice of Decision dated 20 March 2020 (the “Notice”).  His appeal against the Notice was dismissed by the Decision of the Board.  He now seeks leave to apply for judicial review of that Decision.

4.The gist of the Applicant’s claim is that if refouled, he would be killed by a moneylender for being unable to repay his loan of 500 million Vietnamese Dong (“VND”).  He was a taxi driver in Vietnam. One night in January 2018, he hit a woman (the “victim”) while driving his taxi.  He called an ambulance and took her to a nearby hospital.  She had a head injury and was in a coma.  He used her telephone to inform her parents of the accident.  Then, he hung up and left.  He did not report to the police.

5.A few days later, the victim’s parents came to his home.  They demanded VND 500 million as compensation and threatened to call the police if he did not pay.  The Applicant sought help from the moneylender whom he knew had close connection with the public security.  The moneylender lent him VND 500 million for a term of one month at an interest of VND 100 million. 

6.The Applicant used the loan paid the compensation to the victim’s parents.  A month lapsed.  He was unable to repay the loan and interest.  On his pleading, the moneylender gave him two more months until March 2018 to repay and threatened to kill him if he could not pay.

7.Two months later, the moneylender and 20 of his associates came to the Applicant’s home to demand payment.  They assaulted him and almost chopped off his right ear.  They threatened that if he was not able to pay next time, they would kill him. The Applicant fainted.  When he regained his consciousness, he found himself in hospital.  He was discharged on the same day and it took him a month to recover.  He made a report to the police, but never received any news from the police about the progress of their investigation.  He thought that was because of the moneylender’s relationship with the police.  Thus, he moved to Dam Ha to stay with a relative.

8.On 17 July 2018, while he was staying in his relative’s home, he saw the moneylender’s men came.  They fired at him, but missed.  He fled to Mong Cai and then to Hong Kong.  He was told by his mother that the moneylender had been to his home now and then looking for him and threatening to kill him.  In 2019, she told him that the moneylender’s men assaulted his parents.

The finding of the Board

9.The Board found the Applicant’s account incredible.  There was nothing to show he had told the victim’s parents how the accident happened and that he was the driver who hit the victim.  In the circumstances, the Board found it unbelievable that the victim’s parents would know how to find out where the Applicant lived and demand him to pay compensation. 

10.On his evidence, during the March assault the moneylender threatened to kill him if he could not pay next month.  But it was not until four months’ later that the moneylender’s men came to his relative’s place to shoot at him and in the meantime, there was no evidence that the moneylender had been to his home to look for him.  On the Applicant’s account, the loan was due in February 2018 and the moneylender gave him two months’ extension of time to pay, ie until April 2018.  But in his non-refoulement claim form, he said that the moneylender gave him two months’ extension of time until March 2018 to pay.  The timeline in the two incidents are different.  The Board found his evidence unreliable and dismissed his claim on that basis.

11.The Board went further and assessed his claim on the basis of the case as he asserted.   It even accepted that state protection was not the best option for the Applicant.  However, it rejected the Applicant’s argument that the moneylender had a nationwide network and could find him out anywhere in Vietnam.  It found, given his age and experience, it would not be unduly harsh or unreasonable for him to relocate to other areas in Vietnam to avoid the risk of harm from the moneylender.  Hence, it found internal relocation is a viable option to avoid the risk of harm.  It found the dispute between the Applicant and the moneylender is a personal monetary dispute in which no government or public officials or persons acting in an official capacities were involved and that the ill-treatment likely to be suffered by the Applicant would not be on account of any of the reasons protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol. It found the injuries suffered by the Applicant did not attain the minimum level of severity and the feared ill-treatment is unlikely to materialise.  Applying the law applicable to non-refoulement protection to the facts, it found the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the applicable grounds under the USM. 

12.For all these reasons, the Board dismissed the Applicant’s appeal.  

The legal principles applicable to judicial review

13.The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

14.The Applicant did not put forward any grounds of application for judicial review in his Form 86.  In his supporting affirmation, he disagreed with the Decision and reiterated that his life will be in danger if returned to Vietnam.  In effect, he is challenging the Board’s finding of fact that it would be safe for him to return to Vietnam.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Overall scrutiny

15.Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claim.  The Applicant’s claim is founded on the threat of death by his moneylender for not being able to repay his loan and interest.  The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of his risk of harm.  The Board had carefully weighed the evidence, tested it against common sense and inherent probability.  It found him incredible.  It found he had failed to prove, even to the low standard of proof required, the demand for compensation by the victim’s parents on which the centerpiece of his claim was based, ie the existence of the loan and threats.  As the Applicant bears the burden of proving his claim, such a finding is fatal.  The Board did not stop there.  It also assessed his claim on the basis of the case as he asserted. Even on the basis of his evidence, the Board found that there was no factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of law and of fact. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are within the realm of the Board, which the court in an application for judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision.  The Court could detect no errors of law or procedural unfairness in the Decision. The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test.  The Decision could not have been faulted.  Having considered his grounds for application, the Court is satisfied that the Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

16.For the above reasons, the leave application is refused.

Dated the 3^rd day of June 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]