Trinh Quoc Dai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 666/2022

[2026] HKCFI 1988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 666 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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 26 July 2022 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 14 July 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”), refusing his application for non‑refoulement protection. 

The Applicant’s claim

2.The Applicant is a Vietnamese national, aged 43.  His personal background, the factual background leading to the present application, the basis of his claim and 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 he will be harmed or killed by a moneylender for being unable to repay a debt owing to the moneylender. 

3.The Applicant’s case as stated in his non-refoulement claim form (“NCF”) is as follows.  He borrowed two billion Vietnamese Dongs from his family to operate a pig and aquaculture farm in 2019.  The business failed due to his inexperience and a pandemic.  He lost all his investment.  In February 2020, he borrowed 700 million Dongs from a moneylender with triad background to re-invest in his farm at a monthly interest of 280,000 Dongs.  He paid interest for the first five months and then defaulted because of another pandemic in August 2020.  Again, he lost all his investment.  The moneylender and his followers came to his home to demand payment in October and November 2020.  On the first occasion, they threatened to beat him up and to kill him.  On the second occasion, they did the same and put a knife on his neck and slapped his face a few times.  He did not report the incidents to the police.  Out of fear for his safety, he left his home on 20 October 2020.  He fled Vietnam and went to Mainland China on 20 October 2020 and sneaked into Hong Kong on 1 November 2020.  He was arrested by the police in Hong Kong on 30 December 2020.  On 18 January 2021, he lodged his non-refoulement claim.

The finding of the Board

4.The Applicant testified before the Board.  His case was made solely of bare assertions not supported by objective evidence.  The Board rejected his explanation that it took him two months to find out how to lodge his non‑refoulement claim as implausible.  It found his delay in raising the claim adversely affected his credibility. 

5.It noted discrepancies among the Applicant’s evidence in his NCF, the screening interview and his testimony before the Board.  At the screening interview, the Applicant varied the amount of loan he borrowed from 700 million Dongs to 500 million Dongs and the dates of the two debt collection incidents and the dates when he left his home and Vietnam and the date he entered into Hong Kong by a month later.   At the hearing before the Board, he also significantly varied the amount of interest charged by the moneylender from 280,000 Dongs to 10 million Dongs and said he did report the incident to the police, but could not recall whether it was after the first or the second incident.  The Board found the number and nature of inconsistencies and implausibility in his evidence were serious and undermined its reliability.

6.The Applicant was slapped a few times on his face, had a knife put on his neck and threatened with death.  The Board found the ill-treatment he suffered did not attain the minimum level of severity.  It was not convinced that he suffered any physical or mental pain as he alleged, that he came to Hong Kong because of fear of harm by the moneylender and that he was still being pursued by the moneylender.  Without a set of reasonably plausible facts, the Board found there was no factual basis on which it can accept that the Applicant was or subjected to any risk of harm in his home country and therefore failed to prove his entitlement to protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”). However, for completeness, it assessed the Applicant’s claim under the four applicable grounds on the basis of his case as he asserted and some necessary further finding of facts. 

7.The Board repeated its important factual finding that the injuries suffered by the Applicant were minor and fell short of the minimum level of severity.  It found that the moneylender and his underlings were non-state agents; that he had never been arrested, detained or imprisoned in his home country which was indicative that he was not being targeted by the state.  It found the feared harm arose from debt collection activities and did not arise on account of a reason enumerated under Article 1A(2) of the 1951 Convention relating to the status of refugees and its 1967 Protocol.

8.It found on the basis of the country of origin information (“COI”) that there was no evidence that the Vietnamese authority would as a systemic practice fail to discharge its duty or would tolerate any unlawful and allusive behaviour committed by an individual.  It therefore did not accept the Applicant’s claim that state protection would not be available to him.  It did not accept that the moneylender was still interested in locating the Applicant all over Vietnam.  Given the geographical and population size of Vietnam, it considered there was no substantial risk or substantial basis of fear that the moneylender would locate him all over Vietnam.  The Board therefore found the Applicant could avoid the harm and risk of harm by relocating to other cities or areas within Vietnam and that it would not be unduly harsh for him to do so. 

9.Applying the law applicable to non-refoulement protection under the USM, it found the Applicant had failed to prove his entitlement to protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal.

Grounds for judicial review

10.The Applicant advanced the following two grounds of application in his Form 86.  The Court has repeatedly seen such grounds of application in leave applications filed by Vietnamese claimants. These grounds are lacking in particulars.  It appears that these are format grounds adopted by claimants which may have no bearing to their case. 

11.First, the Applicant argued that if returned to Vietnam, his life will be seriously threatened.  He will be tortured, beaten or even killed because the gangsters in Vietnam are cruel and violent.  The gangsters disregarded the law and were willing to kill to satisfy their anger and ferocity.  This is a direct challenge of the Board’s finding of fact that his life would not be at risk of any of the proscribed harm, if returned to Vietnam.  That is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision.

12.Second, he disagreed with the Director’s suggestion that he could relocate to live in other location to avoid the gangsters because of his health, personality and the disadvantage he would suffer in the labour market.  For his benefit, the Court assumed that this complaint is directed at the Board.  The argument now advanced based on the Applicant’s health, personality and other problems had never been advanced before the Board.  It is not open to the Court to take them into account. In paragraph 154 of its Decision, the Board found that it would not be unduly harsh for the Applicant to relocate to other cities of Vietnam to avoid the risk of harm from the moneylender.  That is also a finding of fact solely for the Board, which the court in a judicial review will not intervene, save for errors of law, procedural unfairness and irrationality in the Decision.  The Court will re-visit these issues in its overall scrutiny of the Decision.

13.There is no substance in either of the grounds. In the absence of any arguable or particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

14.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.  

15.It researched into authoritative and credible COI about Vietnam.  It analyzed the evidence carefully and tested it against common sense, inherent probability and the COI.  It found the Applicant exaggerating and his evidence unreliable.  It made some necessary further finding of facts, including availability of state protection and internal relocation. Then, applying the law applicable to non-refoulement protection under the USM to the above finding of 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

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

Dated the 14^th day of April 2026

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