Vu Manh Tuan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 812/2022

[2026] HKCFI 3229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 812 of 2022

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 being absent 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 23 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 20 July 2022 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection (the “Notice”).

Background

2.The Applicant is Vietnamese national, now aged 41. He was arrested by the police on 24 June 2019. He claimed to have sneaked into Hong Kong from Mainland China on 3 June 2019. On 8 May 2020, he made a claim for non-refoulement protection by written signification. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.The Applicant’s personal background, 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. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, he claims he will be harmed or killed, if returned to Vietnam, by a moneylender for being unable to repay his loan borrowed from the moneylender.

4.The Applicant’s claim as set out in his non-refoulement claim form (“NCF”) and record of screening interview (“ROI”) is as follows. He claimed that in about October 2017 he borrowed 1 billion Vietnamese Dongs from a moneylender for a term of one year at a monthly interest rate of 30 million Dongs to start his business trading vehicles for construction work. Since March 2018, he was unable to pay interest due to poor business. Between March and July 2018, he stayed out of his home to avoid the moneylender. However, he was found on the street by the moneylender and two of his underlings on 27 July 2018. They were armed with a beef knife and an iron rod of two feet long. The moneylender hit him with a beer bottle severely injuring his head and blinding his left eye. He immediately fainted. He was hospitalized for three months. He had not encountered the moneylender after that attack, but he claimed he knew the moneylender was looking for him. He did not consider state protection available and believed the moneylender could locate him anywhere he moved to within Vietnam. In January 2019, he left his home and hid in Nha Trang. A month later, he spotted the moneylender in the street; but the moneylender did not notice him. On 3 June 2019, he left Vietnam for Mainland China and then sneaked into Hong Kong.

The finding of the Board

5.The Board seemingly accepted the Applicant’s evidence and assessed his claim on the basis of the account as he asserted. It found the moneylender had no intention to seriously harm or kill the Applicant and that his intention was to coerce the Applicant to repay the debt. The Board found the dispute between the Applicant and the moneylender is a personal dispute in which no government officials were involved. It also found the feared ill-treatment inflicted on the Applicant would not be on account of any of the reasons enumerated under the 1951 Convention relating to the status of refugees and its 1956 Protocol nor would it fall within the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance.

6.Based on the basis of authoritative and credible country of origin information (“COI”), the Board was unable to accept the Applicant’s claim that adequate state protection would not be available to him on his return to Vietnam. The Applicant has also adduced no evidence that the moneylender has the ability and resource to track him down anywhere in Vietnam. In view of his age and experience, the Board found the Applicant could avoided his risk of harm through internal relocation and it would not be unduly harsh or unreasonable for him to so relocate.

7.Applying the law applicable to the non-refoulement protection under the USM to the evidence available, the Board found the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM.

8.Hence, it dismissed the Applicant’s appeal against the Director’s Notice.

Legal principles applicable to judicial review

9.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

10.Annexed to his Form 86 is a one and half page document titled ‘Grounds on which relief is sought’. The document raised only three grounds of application. The rest of the document is about the relief sought and a brief account of the procedural steps taken by the Applicant in pursuing his claim.

11.In his first ground, 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 too angry and cannot control their emotions and behaviour. The Board’s finding is that the moneylender had no intention to seriously harm or kill the Applicant. The moneylender’s intention was to coerce him to repay. The Board’s overall assessment is that the Applicant would not be at risk of any of the proscribed risk of harm from the moneylender on his return to Vietnam. Thus, this ground is in effect a direct challenge of the Board’s finding of fact, which is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision. No such vitiating element has been advanced or proved.

12.Second, the Applicant disagreed with the Director’s suggestion that he could relocate to live in other locations to avoid the moneylender and his underlings because of his health, personality and the disadvantage he would suffer in the labour market. These arguments had not been advanced before the Board. It is not open to the Applicant to seek to review the Board’s Decision on matters which had not been advanced before the Board. In paragraph 71 of its Decision the Board found, being an able-bodied adult with his education and experience, it would not be unduly harsh or unreasonable for the Applicant to move to other areas in Vietnam to avoid the risk of harm. This is a finding of fact which the Court may not intervene, save for errors of law, procedural unfairness or irrationality in the Decision.

13.Third, the Applicant submitted that with the nationwide social network the moneylender could locate him and harm him. This same argument had been considered and dismissed by the Board in paragraph 67 of its Decision. This ground is also a direct challenge of the Board’s finding of fact, which is impermissible.

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. The Board seemingly accepted his evidence and analysed it carefully, tested it against common sense and inherent probability. Applying the law applicable to non-refoulement protection to those facts, it found the Applicant is also not entitled to protection under any of the applicable grounds under the USM. These are mixed finding of the law and of the facts by the Board. The Board gave reasons for its finding. On the evidence, it was open to the Board to make those findings as it did. Insofar as its finding are finding of the law, it is absolutely correct. Insofar as its finding are finding 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 irrationality in the Decision. 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 had 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.

Overall scrutiny

15.For these reasons, the leave application is refused.

Dated the 5^th day of June 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