Nguyen Huu Can v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2838/2019

[2025] HKCFI 2883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2838 of 2019

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Levy:

1.   The Form 86 be amended on the court’s own motion.

2.   The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 26 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 19 June 2018 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 28 September 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.In his Form 86, the applicant named the Board as well as the Director as the proposed respondents and interested parties.  As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be accordingly amended.

3.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 24 June 2025. Before the hearing, a notice of hearing with a reminder[1] of the consequence of absence dated 13 May 2025 was sent to the applicant’s last known address by ordinary post.  The applicant did not turn up at the hearing.  Several phone calls were made to the applicant’s given telephone number on 20 and 23 June 2025, but the calls were not answered. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

4.In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

5.The background as taken from the Director’s and the Board’s Decision can be briefly stated as follows.

6.The applicant is a national of Vietnam.  He entered Hong Kong by boat from mainland China on 1 August 2014 and was arrested by police for illegal entry.  He claimed that he departed Mong Cai, Vietnam, and entered mainland China on 19 May 2014.  The applicant raised a non-refoulement claim on 4 and 7 August 2014.  The applicant’s claim was considered under all applicable grounds - the risk of torture^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5] under the USM.^[6]  The basis of the claim was that he would be harmed or killed by his triad-affiliated loan shark and his henchmen for an outstanding loan.

7.The applicant stated that in late 2008, he took out a loan of 100 million VND from a loan shark for his seafood trading business.  However, since around September 2013, the applicant was unable to make repayments due to the faltering business.  Owing to the unpaid loan, the loan shark and his gangsters came to his home on 3 occasions.  On the first occasion, they only demanded the applicant fiercely to pay. On the second occasion in early 2014, the applicant was assaulted by 5 of them with bare hands and wooden sticks.  The applicant’s head bled and his face and the whole body were swollen after the assault that lasted for about 2 to 3 minutes.  He stayed in hospital for about 3 to 4 days for injections and medications. The third occasion happened after one month.  They threatened that if the applicant were unable to repay the debt, they would take his life.    The applicant knew that he would not be able to make any repayment, and decided to flee.

8.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

9.On 16 May 2018, the applicant attended a hearing before the Board, during which he answered questions from the Board and clarified certain matters.

10.Despite some doubt it had on the overall credibility of the applicant’s evidence, the Board however was prepared to give the benefit of the doubt to the applicant as to his experiences in Vietnam. The Board therefore assessed his claims by attaching credence to the applicant’s evidence. After having taken into account the applicant’s evidence that he was only assaulted once in the three occasions when the loan shark and his gangsters came to his house, the Board concluded that the past ill-treatment has not reached the minimum level of severity. After having considered the relevant information on the Country of Origin (“COI”), and that the loan was only a personal and private matter, the Board found that state protection and internal relocation would be reasonably available. The Board thus concluded that the applicant had failed to show a real risk that he would face any risk of harm if refouled. The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

11.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Discussion

12.In his supporting affirmation for his Form 86, the applicant stated that he could not return to Vietnam because his life would be in danger. 

13.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness as shown in the Board’s giving the applicant the benefit of doubt in assessing the applicant’s claims. The Board had properly directed its mind to the consideration of the relevant law in assessing the viability of the internal relocation (Board’s Decision [69]).  The applicant’s written grounds do not condescend to particulars.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[7].

Delay

14.Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. Hence, the deadline for the filing of the Leave Applicant had expired on 19 September 2018 (without excluding the one-month’s summer vacation).  The Leave Application is late for about 1 year.

15.Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others,  (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge.  The delay of 1 year is significant and inordinate. A good explanation is required.  However, the applicant had provided no reason at all for the delay. In the circumstances, having also taken into account of the court’s discussion above that the Leave Application has no realistic prospects of success, I am disinclined to allow the extension of time.

Conclusion

16.For the reasons stated above, I order the dismissal of the Leave Application.

Order

17.The Form 86 be amended on the court’s own motion.

18.The Leave Application be dismissed.

Dated the 11^th day of July 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