Nguyen Hong v. V. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2558/2024

[2025] HKCFI 1894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2558 OF 2024

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 28 April 2023 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 28 July 2023. His application was filed on 20 December 2024, which is late for more than 1 year and 4 months. This issue will be dealt with below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 16 April 2025. I shall deal with his application on the papers.

The applicant

3.The applicant, aged 42, is a national of Vietnam. He was arrested by police for illegal entering Hong Kong on 16 December 2021. He was referred to the Immigration Department and he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor because he was unable to repay the loan from the creditor.

4.According to the applicant, he had borrowed 500 million Vietnamese currency from his creditor for setting up a hair salon. The business failed because of Covid-19. He was unable to pay the interest. The creditor came to his house together with his subordinates and demanded repayment of the loan. He was unable to repay and the creditor threatened to harm or kill him. On the second occasion, the creditor and his subordinates took away his belongings on his premises. He feared that the creditor might harm him, so he went to China, then to Hong Kong illegally.

5.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 May 2022 (“the Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.The Director refused the applicant’s claim for the reasons: (i) his creditor had never hurt him, so his risk of harm if he returns to Vietnam is remote or not imminent; (ii) state protection is available; and (iii) internal relocation is viable. [11]-[24]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 April 2023, the Board conducted an oral hearing. The applicant attended the hearing and answered questions from the Board.

9.Having considered the applicant’s evidence, the Board dismissed his appeal and confirmed the Director’s Decision for the reasons below.

(1) The Board did not believe his evidence on the facts of his claim. [77]

(2) The applicant failed to establish that he will be subjected to any risk of harm if he returns to Vietnam. [78]

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 20 December 2024 for leave to apply for judicial review of the Board’s Decision. He raised the grounds in support of his application as summarized below.

(1) The Board’s Decision is unreasonable as it contravenes Article 29 of the Basic Law and Article 2 of the Bill of Rights.

(2) The adjudicator was unfair in assessing his evidence and unreasonable in demanding him to answer questions that he was not in a position to respond.

(3) The Board conducted the hearing in a procedurally unfair manner and it did not attain high standards of fairness as it failed to analyze the substance of his claim.

11.In his affirmation in support of his application, the applicant attached a copy of the Board’s Decision to it without raising any other reasons.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant submitted that the Board was wrong because it did not accept his evidence and he asked the Court to review the Board’s Decision.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.According to the Board’s finding of the facts of his claim, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country.

16.Those grounds under paragraph 10 are his bare assertions or his personal opinions without any evidence in support. They are not valid to challenge the Board’s Decision.

17.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant appeared in person.