Vo Manh Hung v. Torture Claims Appeal Board

HCAL 419/2021

[2025] HKCFI 5439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 419 OF 2021

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:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Vietnam who together with his girlfriend entered Hong Kong illegally on 1 September 2019 and were arrested on 25 September 2019, and for which they were convicted and sentenced to prison for 15 months, during which they jointly raised a non-refoulement claim for protection to the Immigration Department on the basis that if they returned to Vietnam they would be harmed or killed by their respective creditors over their own unpaid debts.

2.The Applicant was born in Ho Chi Minh City but raised in Hai Phong City. After leaving school he worked in manual labour to make his living, married his wife and raised a family with 3 children in his home district.

3.In 2016 he divorced his wife, and in 2017 started to cohabit with his girlfriend, and later in the same year he and his girlfriend each borrowed a loan from different money-lenders for their trip to Taiwan to look for jobs, and from which they hoped to be able to repay their respective loan with their income earned in Taiwan.

4.Accordingly they left Vietnam in January 2018 to arrive in Taiwan, but their plan did not work out as they were unable to find any regular jobs, and as a result they left Taiwan in April 2018 to return to Vietnam, and when they were unable to repay their loans, their respective creditors started to send men to threaten them, and on one occasion the Applicant was beaten by those men that he was hospitalized for several weeks.

5.As a result the Applicant and his girlfriend became fearful for their life and on 20 December 2018 they departed Vietnam for China, and from there they then sneaked into Hong Kong, but were shortly thereafter repatriated to Vietnam, but as they were still fearful of being killed by their respective creditors, they again on 28 August 2019 departed Vietnam for China, and from there they again sneaked into Hong Kong, and upon their subsequent arrest they then jointly raised their non-refoulement claims for protection, for which they completed a joint Non-refoulement Claim Form (“NCF”) on 10 July 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 16 September 2020 the Director of Immigration (“Director”) rejected the claims of the Applicant and his girlfriend on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

7.In his decision the Director took into account of all the relevant circumstances of the respective claims of the Applicant and his girlfriend and assessed the level of risks of harm from their respective creditors upon their 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 either creditor to seriously harm or kill either of them other than to press them to repay their respective debts, that in any event these were private monetary disputes between them and their creditors only without any official involvement that state or police protection would be available to the Applicant and his girlfriend 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 98 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for the Applicant and his girlfriend as able-bodied adults with working experience to move to other areas of the country away from their home district in large cities where it would be difficult if not impossible for their creditors to locate them.

8.On 28 September 2020 the Applicant and his girlfriend jointly lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not find necessary to hold any oral hearing and proceeded to deal with their appeal on papers based on the material and information provided by them earlier to the Director and available in the hearing bundle before the Board. On 11 March 2021 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board accepted the claims of both the Applicant and his girlfriend of fear of being harmed by their creditors over their unpaid debts but found no reliable evidence of any real intention of their creditors to seriously harm or kill either of them other than to press them to repay their debts, and that in any event these were private monetary disputes between them and their creditors only without any official involvement that state or police protection would be available to the Applicant and his girlfriend upon their return to Vietnam as well as reasonable internal relocation alternatives for them to move safely to other parts of the country away from their home district without any risk of being located by their creditors that both of their claims for non-refoulement protection failed on all applicable grounds.

10.On 23 March 2021 the Applicant by himself only 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 repeated that his life is in danger if returned to Vietnam but without putting 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, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

11.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.

12.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 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.

13.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.

14.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 17^th day of November 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