Nguyen Duc Thao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3145/2019

[2025] HKCFI 2805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3145 OF 2019

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BETWEEN

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J U D G M E N T

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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. He appeared before the Court on 10 May 2025.

The applicant

3.The applicant, aged 34, is a national of Vietnam. According to the applicant, he claimed to have arrived in Hong Kong illegally on 23 March 2015 and surrendered to the Immigration Department on 24 March 2015. In due course, he lodged a non-refoulement claim.

4.The applicant’s claim was based on his fear of being harmed or killed by his creditor because of his inability to repay a debt.

5.According to the applicant, he was threatened by 10 unknown men and was assaulted. His motorcycle was taken away worth 12,000,000 VND. The creditor was still looking for him and his older brother. Details of his claim are set out in Chinese at paragraph 6 of the Notice of Decision dated 26 July 2017 by the Director (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.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that the absence or low intensity and frequency of the ill-treatment encountered was indicative of a small future risk of harm and that the creditor’s intention was only for repayment of the loan and not to seriously harm or injure the applicant and no evidence suggesting that the creditor or his men had resources to locate the applicant all over Vietnam [11-15]; that state protection was available [16-19]; and that internal relocation alternatives were available and reasonable [20-24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 22 July 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found that as the applicant failed to prove the claims under the applicable grounds and that the applicant’s problem was a private dispute [50, 53, 57, 58]. In any event, the Board was satisfied that there was sufficient state protection available to the applicant [39-43], and internal relocation was reasonable or not unduly harsh [59-64]. 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

10.The applicant has filed Form 86 dated 23 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant did not raise any specific ground against the Board’s Decision.

DISCUSSION

12.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).

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 said that the Board was not wrong.

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

16.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.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 appeared in person.