Pham Van Loc v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 440/2021

[2025] HKCFI 5923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 440 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and the Applicant submission in open court.

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 29 March 2021 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 28 January 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 September 2021 (the “Notice”), refusing his application for non‑refoulement protection.

The Applicant’s claim

2.The Applicant is Vietnamese national. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, the Applicant claims that he fears he will be harmed or killed by a moneylender for being unable to repay the debt he borrowed, if he is refouled.

The Board’s finding

3.The Board assessed the Applicant’s claim on the basis of the factual case as he asserted. According to the Applicant, his moneylender visited his home a number of times, but only met with him twice. On the first occasion, the moneylender gave him extension of time to repay. On the second occasion, the moneylender’s men assaulted him for about ten minutes, but did not cause him serious or life threatening harm. The Board found the moneylender had no intention to seriously harm or kill him and the injuries he suffered did not attain the minimum level of severity. It found that the moneylender only wanted to exert pressure on him to enforce repayment.

4.It found the dispute between the Applicant and the moneylender was a private monetary dispute in which the Vietnamese government was not involved and did not acquiesce. For the same reason, it also found the ill-treatment he received from the moneylender was not on account of a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

5.On the basis of authoritative and credible country of origin information the Board accepted that corruption remains a problem in Vietnam, but was nevertheless satisfied that the government is taking steps to combat corruption and illegal debt collection activities. It found adequate state protection would be available to the Applicant on his return to Vietnam. It also found the risk facing the Applicant is localized in his home area and that he can avoid the risk of harm by internal relocation. Given his age, education and working experience, the Board found it would not be unduly harsh to expect him to relocate outside his home area to avoid the risk of harm.

6.The Board also found that the Applicant’s claim is not concerned with a death sentence having been passed on him or fear of genocide.

7.Applying the law applicable to non-refoulement protection, the Board found the Applicant is also not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”). Hence, it dismissed his appeal.

Grounds for judicial review

8.At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements. He repeated his inability to repay his debt and his danger returning to Vietnam. He asked to be allowed to remain in Hong Kong as long as possible to enable his family to save enough money for him to repay his debt. In substance, he is disputing the Board’s finding of fact which is impermissible save for errors of law, procedural unfairness or irrationality in the Decision. None of these reasons constitute any arguable grounds of review.

Overall scrutiny

9.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information. The Board assessed his claim on the basis of the factual case as it asserted. It made the further finding of fact as summarized in paragraphs 3 to 7 above. Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

10.For the above reasons, the Applicant’s leave application is refused.

Dated the 5^th day of December 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