Nguyen Van Linh and Another v. Torture Claims Appeal Board

HCAL 32/2024

[2026] HKCFI 3981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 32 OF 2024

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 the 1st and 2nd Applicants (“the Applicants”) being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.The 1^st and 2^nd Applicants are husband and wife in their 40s and nationals of Vietnam who entered Hong Kong illegally on 14 April 2023, and after the 2^nd Applicant was arrested by police on 21 April 2023 and was referred to the Immigration Department for investigation, the 1^st Applicant on 18 May 2023 also surrendered to the Immigration Department and both raised their non-refoulement claims for protection on the basis that if they returned to Vietnam they would be harmed or killed by the creditor of the 1^st Applicant over his unpaid debts. They were subsequently released on recognizance pending the determination of their claims.

2.Both Applicants were born and raised in Quang Ninh Province, Vietnam. After leaving school they worked as casual workers to make their living, married each other and raised a family with 2 children in their home district.

3.In 2018 the 1^st Applicant started his fruits export business with a friend with the help of a loan which he borrowed from some local money-lender to be repaid by monthly instalments with interests which he initially managed to make from the business income.

4.However, the business did not fare well, and by mid-2019 when he defaulted in his loan repayment, his creditor started to send men to threaten him, and after being beaten by those men on 2 occasions and with a warning that they would kill him and his wife if next time he still failed to repay his debts, both Applicants became fearful for their life and so in April 2023 they departed Vietnam for China, and from there they later sneaked into Hong Kong, and upon the subsequent arrest of the 2^nd Applicant by the police they then raised their non-refoulement claims for protection, for which they each completed a Non-refoulement Claim Form (“NCF”) and jointly attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 21 August 2023 the Director of Immigration (“Director”) rejected the Applicants’ claim 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm from the 1^st Applicant’s creditor and followers upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the 1^st Applicant’s creditor to seriously harm or kill either of them other than to press the 1^st Applicant to repay his debts, that in any event it was a private monetary dispute between the 1^st Applicant and his creditor only without any official involvement that state or police protection would be available to the Applicants 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 103 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicants as both able-bodied adults with working experience to move to other areas of the country away from their home district in large cities such as Bien Hoa, Nha Trang where it would be difficult if not impossible for anyone to locate either of them.

7.On 4 September 2023 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they jointly attended an oral hearing on 7 December 2023 before the Board during which both gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 22 December 2023 their appeals were dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board found material inconsistencies and discrepancies in the evidence of the 1^st Applicant that it doubted the credibility of his claim of fear of harm from some creditor over his debts that caused him and his wife the 2^nd Applicant to leave their country to come to Hong Kong to seek protection, that even if their accounts of events prior to their departure of Vietnam were true that there was no reliable evidence of any real intention of the creditor of 1^st Applicant to seriously harm or kill either of them other than to press the 1^st Applicant to repay his debts, and that in any event it was a private monetary dispute between the 1^st Applicant and his creditor only without any official involvement that state or police protection would be available to both Applicants 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 the creditor of the 1^st Applicant that their claims for non-refoulement protection failed on all applicable grounds.

9.On 3 January 2024 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for their intended challenge:

(1)  That the Board reached the decision wrongly in assessing their non-refoulement claims as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that their life must be protected by the criminal law from the killings that they may face if deported back to their home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in their case which led to an unfair outcome of rejecting their claims;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicants’ personal backgrounds and experience in assessing their claims;

(4)  That the Board had listed relevant COI which supported the Applicants’ aversions that the police in their country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicants’ case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicants’ argument that corruption and incompetency of the administration in the Applicants’ country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicants’ assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicants’ explanations and unreasonably required them to respond to questions that they were not in a position to offer any response;

(7)  That the Adjudicator made a ruling to dismiss the Applicants’ appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

10.These are however all just bare and vague assertions of the Applicants containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to their case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to the Applicants’ case when on the factual basis of even their own case that it was a private monetary dispute between them and the creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicants, I do not find any of them reasonably arguable for their intended challenge.

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 Applicants’ case, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing them in their oral evidence and their answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicants’ claims if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Vietnam, there is simply no justification to afford either of them with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.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 Applicants’ claims.

15.Moreover, the 1^st Applicant has recently filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country, while the 2^nd Applicant also failed to attend the scheduled hearing without any explanation.

16.As I am for the given reasons not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their leave application.

Dated the 14^th day of July 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