Tran Tuan Quan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3141 of 2019

[2025] HKCFI 2806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3141 OF 2019

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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 11 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 19 May 2025. I shall deal with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Vietnam. According to the applicant, he claimed to have arrived in Hong Kong illegally on 12 April 2019 and was arrested by police on 16 April 2019 for being a suspected illegal immigrant. In due course, he lodged a non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by triads / creditors because of his inability to repay the loan which they requested.

6.According to the applicant, he had borrowed 500 million VND from friends the applicant met in Russia, but was then asked for repayment after the applicant’s business was burnt down. His creditor and his subordinates had gone to his home where they threatened the applicant with death. They had also vandalize his home and assaulted him with kicks and fists. They burned his back with cigarette butts. He had reported to police, who said that they were unable to assist him. He left his home in Hai Phong in early 2018 to stay in Hanoi for six months. He returned to Hai Phong after creditors came to bother his parents and to vandalize his house. The applicant claimed that he was under pressure to leave Vietnam. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 24 June 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that there were no substantial grounds for believing that there were any real and substantial risk of the applicant being harmed or killed by triads / creditors, that the absence or low intensity and frequency of the ill-treatment encountered was indicative of a small future risk of harm, and the risk of harm from the triads/ creditors were not as real or as imminent as claimed [11-15]; that state protection was available [16-17]; and that internal relocation alternatives were available and reasonable [18-20].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 11 September 2019, the Board conducted an oral hearing for his appeal, during which the applicant was asked why he returned to Hai Phong where his creditors were located despite having left to Hanoi for about 6 months [30].

10.Having considered the evidence, the Board found that as the applicant gave conflicting and incredible evidence, he could not base his case on such unreliable information/evidence [33]. In any event, the Board was satisfied that state protection was available to the applicant although he had attempted to obtain help from the police but failed, the applicant only made a complaint to one level of the police but he did not complain to the higher level for assistance [48]; and that internal relocation was not unreasonable [39-42]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

11.The applicant filed the Form 86 on 23 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for his application.

12.In his affirmation in support of his application, the applicant deposed that he did not agree with the Board’s Decision because his life is in danger in his home country, but again he did not put forth any grounds.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s findings.

17.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 grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear.