Pham Xuan Tien v. Torture Claims Appeal Board

HCAL 836/2022

[2026] HKCFI 4028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 836 OF 2022

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 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 47-year-old national of Vietnam who entered Hong Kong illegally on 22 November 2020 and subsequently surrendered to the Immigration Department on 25 November 2020 when he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Hai Phong, Vietnam. After leaving school he worked as a welder to make his living, got married and raised a family with a daughter in his home district.

3.However, in 2004 he started to indulge in gambling and as a result was often in debts due to borrowing loans from some local money-lender to pay for his gambling losses, but in 2009 when he was unable repay his loans, his creditor sent men to threaten him, and after being beaten severely by those men on one occasion with a warning that they would kill him if he still failed to repay his loan within the next 3 days, the Applicant became fearful for his life and fled from his home to Ho Chi Minh City to take shelter in a friend’s place.

4.For the next 10 years the Applicant stayed in his friend’s place and worked in various manual labour to make his living without incidents, but in 2020 he heard that his creditor was sending men to Ho Chi Minh City to kill him, the Applicant believed that it was no longer safe to remain in Vietnam, and so on 10 November 2020 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 3 September 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his 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 Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his 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 his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant 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 100 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Da Nang or Ho Chi Minh City where he had stayed in the past without incidents and where it would be difficult if not impossible for his creditor to locate him.

7.On 15 September 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 28 April 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 August 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board accepted the Applicant’s claim of fear of harm from his creditor over his unpaid debts but found no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam to negate such risk that his claim for non-refoulement protection failed on all applicable grounds.

9.On 26 August 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)   That the Board reached the decision wrongly in assessing his non‑refoulement claim as gangsters in Vietnam are different from those in Hong Kong and would simply disregard the law to kill people to satisfy their anger and ferocity that state protection would be help the Applicant if returned to Vietnam;

(2)   That the suggestion for the Applicant to move to another location to avoid his creditor is completely unfeasible as there will be many difficulties and obstacles that he will have to face in a new location in his home country as his health is not good and that he is not an active person and near his retirement age that will disadvantage him in the labour market as there is no guarantee that he will be able to adapt to the new location and to find a job to earn his living;

(3)   That with nationwide social network of the gangsters with clandestine connection to corrupt government officials and politicians that his creditor will be able to locate him that internal relocation is not a via option for the Applicant if refouled to his home country that the Board’s decision is therefore wrong and clearly unsafe.

10.All these are however just some bare and vague assertions of the Applicant without any necessary or relevant particulars or specifics or elaborations as to how they apply to his 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 which clearly show that state and police protection are readily available to the Applicant to minimize and negate any risk that may arise from his claim, while those COI relied on by the Director also clearly and properly support the viability of reasonable internal relocation to the Applicant that it is impossible for his creditor to locate him and in the absence of any evidence to corroborate his such bare and unsubstantiated assertions. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, and as he also failed to attend the hearing of his application without any explanation, I do not find any of his proposed grounds reasonably arguable for his 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 Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also agreed and confirmed by the Board, there is simply no justification to afford him 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 Applicant’s claim.

15.As I am for the given reasons 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 21^st 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