Nguyen Ngoc Tuan v. Torture Claims Appeal Board

HCAL 1496/2020

[2025] HKCFI 3805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1496 OF 2020

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Vietnam who entered Hong Kong illegally on 15 July 2015 and surrendered to the Immigration Department on 28 July 2015 when 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 Quang Ninh Province, Vietnam. After leaving school he worked as an electrician to make his living in his home district.

3.In 2013 he and his brother started their fish farm business with the help of a loan borrowed from a local money-lender with monthly interest payments which he and his brother initially managed to make from their business income.

4.However, in December 2013 they lost their business after their fish stocks were wiped out by a typhoon, and when they later defaulted with their loan repayment, their creditor started to send men to threaten them, and after one occasion when those men had vandalized their home and threatened to kill them next time if they still failed to repay their loan, the Applicant became fearful for his life and fled to Hai Phong to hide in a friend’s place, and on 22 December 2014 he departed Vietnam for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 23 February 2017 the Director of Immigration (“Director”) 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim 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 95 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.

7.On 3 March 2017 he Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 5 September 2018 before the Board when he requested to withdraw his appeal as he confirmed that it was safe for him to return to Vietnam, and upon confirming with him that his request was freely sought and that he fully understood the consequences of his withdrawal, and upon being satisfied that he had good reason to do so, the Board there and then allowed the withdrawal of his appeal, and confirmed the Director’s decision and that the Applicant’s non-refoulement claim has been finally determined.

8.However, almost 2 years later on 15 July 2020 the Applicant filed a 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 his supporting affirmation of the same date in which he just stated that he does not agree with the decision as his life in his home country is still in danger that he cannot return but without any further details or particulars or elaboration as to why it is so or what may have happened over the past year or so since the withdrawal of his appeal before the Board, nor did he request any oral hearing for his application.

9.By then the Applicant was clearly also seriously 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.

10.As the last day of the three-month period for him to file his Form 86 fell on 5 December 2018, the Applicant was therefore more than 1 ½ 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.

11.In the Applicant’s case, a delay of more than 1 ½ 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 as the record shows that the Board’s decision was made at the hearing on 5 September 2018 in the presence of the Applicant and that the decision was also put in writing and handed to him on the same day, I am unable to see any good or valid reason for his such serious delay.      

12.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forth any proper ground for his intended challenge, nor did he request any oral hearing for 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, or for that matter as regard the Director’s decision in his notice of appeal to the Board in which he just repeated his claim as before, I do not find any merits in his intended application to challenge the decision of the Board, or of the Director either.

13.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.

14.In the Applicant’s case, the Board allowed his request to withdraw his claim and appeal made at the hearing with the benefit of hearing him in his oral evidence and his answers to questions raised of his request by the Adjudicator for the Board, and that his request was allowed by the Board upon being satisfied that his request was freely sought, that he fully understood the consequences of his withdrawal, and that he had good reason to withdraw upon his confirmation that it was safe for him to return to Vietnam. As such, and in the absence of any valid reason or explanation for his apparent change of mind since or of any change of circumstances as to his claim by the Applicant, or of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant in his Form or affirmation, nor did he ever subsequently make any request to the Board to re-open or re-instate his appeal for whatever reason, I do not find any reasonably arguable basis to challenge the decision of the Board.

15.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

16.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 the Director’s consideration and assessment of the Applicant’s claim or in the Board’s decision to allow his request to withdraw his appeal.

17.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 4^th day of September 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