Tran Ba Thanh Cong v. Torture Claims Appeal Board

HCAL 1624/2020

[2025] HKCFI 4117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1624 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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 5 July 2019 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Vietnam who entered Hong Kong illegally on 15 June 2015 and surrendered to the Immigration Department on 9 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 the family of a traffic victim caused by him in a traffic accident.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Xa Hoa Binh, Huyen Thuy, Vietnam.  After leaving school he worked as a taxi driver and later a truck driver to make his living in his home district.

3.One day in April 2015 while driving his taxi in his home district, his taxi hit and broke the leg of a man who was crossing the road that the victim was subsequently taken to the hospital for medical treatment.

4.On the following day the parents of the victim came to the Applicant’s home to demand for compensation for the accident, to which the Applicant agreed to pay for his medical and hospital expenses.

5.However, several days later the victim’s parents returned to threaten to break the Applicant’s legs in revenge for the victim, and on the next day several unknown men came to the Applicant’s home to beat him violently, and while they did not say anything, the Applicant suspected that they were sent by the victim’s family to take revenge against him.   

6.After a second beating by the same group of men several days later, the Applicant became fearful for his life and fled to Mong Cai, and on 23 May 2015 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 25 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.While being released on recognizance pending the determination of his claim, the Applicant was arrested by police on 5 November 2015 for theft and was subsequently convicted and sentenced to prison for 4 weeks.               

8.By a Notice of Decision dated 7 June 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”).

9.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 the victim’s family 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 the victim’s family to seriously harm or kill him other than to press him to pay compensation for the accident or any evidence that those men who assaulted him were sent by the victim’s family, that in any event it was a private and personal dispute between him and the victim’s family 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 anyone to locate him.

10.On 29 June 2017 the 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 27 February 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 July 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the victim’s family that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Vietnam were true that there was no reliable evidence of any real intention of the victim’s family to seriously harm or kill him other than to press him to pay compensation for the accident, and that in any event it was a private dispute between him and the victim’s family only them 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 that his claim for non-refoulement protection failed on all applicable grounds.    

12.On 7 August 2020 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 his supporting affirmation of the same date in which he just stated that he does not agree with the decision as his life is in danger in his home country that he cannot go back but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.  

13.By then the Applicant was however 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.

14.As the last day of the three-month period for him to file his Form 86 fell on 5 October 2019, the Applicant was therefore some 10 months 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.

15.In the Applicant’s case, a delay of 10 months must be considered as very 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 decision was sent on the same day of 5 July 2019 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.      

16.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge.  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.

17.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.

18.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 even 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.                

19.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.

20.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 16^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