Tran Van Long v. Torture Claims Appeal Board

HCAL 599/2025

[2025] HKCFI 2552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 599 OF 2025

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 5 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 35-year-old national of Vietnam who had previously entered Hong Kong illegally but was repatriated in April 2019 to Vietnam again sneaked into Hong Kong some 8 months later on 18 January 2020, and was arrested by police on 13 February 2020. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Thuy Nguyen City, Hai Phong, Vietnam. After leaving school he worked in a ship factory in his home district to make his living.

3.In 2014 he started his own ship repairs business with the help of a loan borrowed from a local money-lender to be repaid within 5 months and with monthly interest payments, which he initially managed to make from his business income.

4.However, his business did not fare well, and when he started to default with his loan repayments, his creditor sent men to threaten him, and after being beaten by those men on one such occasion, the Applicant became fearful for his life, and fled to Mong Cai several days later, and on 4 April 2014 he departed Vietnam for China, and from there he later sneaked into Hong Kong on 1 June 2014, and was subsequently arrested by police some 6 months later on 27 December 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts, for which he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 31 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.On 14 June 2017, his claim was rejected by the Director of Immigration (“Director”), and after his subsequent appeal to the Torture claims Appeal Board (“Board”) was also withdrawn before determination, the Applicant was repatriated to Vietnam on 2 April 2019.

6.Upon returning to his home district in Hai Phong City, one day in July 2019 the Applicant ran into his creditor and followers on the street when they again demanded for repayment of his loan, and when he was unable to do so, they then beat him severely causing injuries to his head, and before they left the Applicant was warned that next time he would be killed if he still failed to repay his loan, and so the Applicant departed Vietnam again on 15 January 2020 for China, and from there he again sneaked into Hong Kong, and upon his arrest by the police he then made a request to the Immigration Department to raise a subsequent claim on the same basis as his previous claim but with new threats from his creditor, and when he was subsequently allowed to do so, he then completed another NCF on 3 June 2021, and attended a further screening interview before an immigration officer with legal representation from DLS.

7.By a Notice of Decision dated 12 August 2021 the Director again 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim including those from his previous claim as well as after his repatriation to Vietnam in April 2019 to the time of his second departure of Vietnam in January 2020, and assessed the level of risk of harm from his creditor and followers 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 creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor 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 98 million people spread across a vast territory of more than 331,000 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 creditor to locate him.

9.On 26 August 2021 the Applicant again lodged an appeal to the Board against this decision of the Director, and for which he attended an oral hearing on 11 May 2022 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 January 2023, his appeal was dismissed by the Board which also confirmed the Director‘s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor over his outstanding debts but found no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between the 2 of them 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 creditor that his claim for non-refoulement protection failed on all applicable grounds.

11.On 10 March 2025, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge.

12.By then the Applicant was also 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.

13.As the last day of the three-month period for him to file his Form 86 fell on 5 April 2023, the Applicant was therefore almost 2 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.

14.In the Applicant’s case, a delay of almost 2 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and at the hearing of his application he just stated that he had been detained by the Immigration Department, but given the availability of assistance from the stationed welfare officers, I am unable to see any good or valid justification for his such serious delay.

15.As for the merits, if any, of his intended application, as noted above that the Applicant failed to put forward any proper ground for his intended challenge in his Form or supporting affirmation, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

16.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.

17.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.

18.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.

19.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 19^th 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