Hoang Van Quyen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 775/2022 [2026] HKCFI 5169 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 775 of 2022 BETWEEN
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:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 16 August 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 9 August 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 46. 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 loan shark for being unable to repay a loan owing to the loan shark. 3.The Applicant’s case is that he borrowed 800 million Vietnamese Dongs from a loan shark with triad background in May 2017 at a monthly interest of 12 million Dongs, according to his evidence in his non-refoulement claim (“NCF”) or 10 million Dongs according to his testimony before the Board. He gave three different and inconsistent purposes for which the loan was borrowed. First, he said in his witness statement that he borrowed the money for doing business, but the business failed. Second, he said in his NCF that he borrowed the money for football betting and not for doing business. Third, he said in his testimony before the Board that he borrowed the money originally for doing business, but when he obtained the money, he spent it over a period of three years on football betting. He also gave two different accounts of the business which he intended to spend the money on. He said in his NCF that he intended to raise poultry such as chicken at home; but in his testimony, he said he intended to raise cattle on the hill side near his home. Of course, ultimately, he spent the money neither in raising poultry nor in raising cattle, but on football betting. 4.He explained the inconsistencies on the ground of misunderstanding between him and his friend who prepared the witness statement for him because he is illiterate. But, elsewhere, he had told the Board that he obtained the betting information from his mobile phone, which show that he was not illiterate at all. When challenged, he changed his evidence and said that his friend read the information from his mobile phone to him. The Board did not accept such explanation. 5.There are many other inconsistencies and impossibility in his account. For example, he said in his NCF that he was a construction worker earning 5.7 million Dongs per month prior to the borrowing. That was far below the monthly interest he was required to pay, be it 10 million Dongs or 12 million Dongs. Besides, his income could only support his family expenditure. That apart, according to credible country of origin information (“COI”), the usual maximum amount of loan lent by loan sharks was only 100 million Dongs. For bigger loans, collaterals or personal background checks were required. It is inherently improbable that the loan shark would have lent such a huge loan to a borrower whose income was less than half of the monthly interest payable and without collateral or background check. 6.The Board found the Applicant constantly changing his evidence. It found he was not a credible witness and his claim was based on questionable and unreliable evidence. It did not accept his account to be true in general. It considered, in particular, the multiple inconsistencies and implausibility in his case fatal to the centrepiece of his claim. It found the alleged loan was a fabrication and so must the alleged harm and ill-treatment. That must necessarily mean the Applicant had failed to prove the factual basis to support his claim for protection under any of the applicable grounds. 7.Even accepting what he told the Board was true, which the Board did not, it found that the alleged harm suffered by the Applicant did not attain the minimum level of severity or that there is no real risk of serious harm; that the loan shark was not a state agent but a non-state actor; and that the harm or ill-treatment inflicted on the Applicant fell outside the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance. It also found the harm or ill-treatment arose out of the Applicant’s private and personal dispute with the loan shark which had nothing to do with any of the reasons under the 1951 Convention relating to the status of Refugees and its 1967 Protocol. 8.It found on the basis of credible COI that the Vietnamese government is able or willing to provide reasonable protection to its citizens; there is no evidence that the Vietnamese government is unable or unwilling to protect him; and that he had failed to discharge the burden of showing why he could not obtain and seek state protection. 9.It also found the Applicant’s risk of harm was localised to his home area and it would not be unduly harsh for him to relocate to other parts of Vietnam to avoid the risk of harm. Other than making vague and bare assertions that the loan shark is powerful and influential, the Applicant had failed to discharge his burden of showing why he could not relocate. 10.Applying the law applicable to the non-refoulement protection to the above finding of fact, the Board also came to the conclusion that the Applicant is not entitled to protection under of the applicable grounds under the Unified Screening Mechanism (“USM”). Hence, it dismissed the Applicant’s appeal. Legal principles applicable to judicial review 11.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[2]. Grounds for judicial review 12.At the hearing, after the above principles had been explained to the Applicant, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality in the Decision. However, annexed to his Form 86 is a document titled ‘Grounds on which relief is sought’ containing nine paragraphs (the “List of Grounds”). Only paragraphs 5 to 9 may barely be said to be grounds of application. He said these grounds were prepared by his friend while he was in custody. He said he understood what was written in the grounds and could provide particulars, if required. However, when particulars were asked of him, he said he did not understand the grounds because they were written by his friend. Even after the grounds were explained to him, he just could not provide any particulars. These grounds are as follows. Ground (1): His life will be seriously threatened if returned to Vietnam (paragraph 5 of the List of Grounds) 13.In effect, this ground is a direct challenge of the Board’s finding of fact and credibility, which is impermissible save for errors of law, procedural unfairness and irrationality in the Decision. The Board found the Applicant incredible and not a witness of truth. It found his case is basically a fabrication; but even if it were true, by reason of other further finding facts he is not entitled to protection under any of the applicable grounds under the USM. All these are finding of fact, solely within the realm of the Board. There is no substance in this ground. Ground (2) – Internal relocation is not feasible; Ground (3) – the loan shark could locate him through his nationwide network of gangsters and clandestine connection with corrupt elements in the government and police apparatus (paragraphs 6 and 7 of the List of Grounds respectively) 14.These two grounds may be conveniently considered together. On the basis of the Board’s finding of fact, internal relocation is not necessary for the Board’s decision: see paragraph 146 of the Decision. In effect, this ground is an indirect challenge of the Board’s finding of fact that the Applicant’s case is fabricated and even if it were not, by reason of other further finding facts, he is not entitled to protection under any of the applicable grounds. This ground is also a direct challenge of the Board’s finding of fact that the risk, if there is any, is localised and that it would not be unduly harsh for him to relocate to other parts of Vietnam. All these are finding of fact, solely within the realm of the Board. These challenges are impermissible. 15.Furthermore, once the Board has raised the issue of internal relocation, for example that the risk is localised, the burden is on the Applicant to discharge the onus of showing why he could not relocate. The Applicant’s evidence shows that the risk was localised to his home area. Other than making vague and bare assertions that the loan shark is powerful and influential, the Applicant had not adduced any evidence why he could not relocate. Now, he raised under Ground (2) his poor health, inactive personality, and his near retirement age as negative factors which would make it difficult for him to find employment in the new location. These grounds had never been argued before the Board and did not form part of the Board’s decision. No evidence has been adduced in support of these grounds. In particular, he is now 46. He was 42 at the time of hearing before the Board. He could not be anywhere near retirement age, whether now or at the time of hearing before the Board. It is not open to this Court to consider reviewing the Board’s decision on this ground. 16.Under Ground (3), the Applicant claimed he could be located by the loan shark through his nationwide social network of gangsters and clandestine connections with corrupt government and police apparatus. These are serious allegations. This ground had not been argued before the Board. Not a scintilla of evidence of this social network or clandestine connection had been adduced by the Applicant, whether before the Board or at this hearing. All these are bare allegations amounting to speculation. For all these reasons, it is not open to this Court to review the Board’s decision on this ground. Ground (4) – The Board is clearly wrong, it is wrong to rule the Applicant as unreliable; and Ground (5) – The Director’s refusal of the Applicant’s claim was wrong (paragraphs 8 and 9 of the List of Grounds, respectively) 17.For the Applicant’s benefit, the Court assumes that Ground (5) is also directed at the Board. However, the Applicant could not provide any particulars as to what is wrong with the Board’s or the Director’s decisions. The Court shall revisit these complaints in its overall scrutiny of the Board’s Decision. Overall scrutiny 18.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. It researched extensively into authoritative and credible COI, in particular about moneylending practice in Vietnam. It analyzed the evidence carefully and tested it against common sense, inherent probability and the COI. The Applicant’s account was inconsistent and implausible. He gave three different purposes for which the loan was sought and two different uses to which the loan was intended to be applied. His monthly income prior to the borrowing was not even enough to pay half of the monthly interest payable under the loan. His evidence that such a huge loan was given to him without collateral or background checks is inconsistent with the practice of loan sharking in Vietnam and begs belief. The Board found the Applicant incredible and his evidence unreliable. On the basis of his evidence, the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. 19.However, the Board went on to assess the Applicant’s claim on the basis that his account was true, which the Board did not accept. It made some necessary finding of other facts based on his evidence and the COI, including that the injuries he suffered did not attain the minimum level of severity, that neither the government nor state actors was involved in inflicting harm and ill-treatment on him, that his dispute with the loan shark was a private monetary dispute; and that state protection and internal relocation are available. 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 20.For the above reasons, the Applicant’s leave application is refused. Dated the 11th day of September 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 |