Nguyen Phuc Doanh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1384/2023 [2026] HKCFI 5600 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1384 of 2023 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: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicants’ application by Form 86 filed on 9 August 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 2 August 2023 (the “Decision”) dismissing his appeal against the decisions 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, now aged 40. On 24 December 2021, he was arrested by the police for remaining in Hong Kong illegally and referred to the Immigration Department. He claimed to have left Vietnam for Mainland China in October 2021 and sneaked into Hong Kong on 2 November 2021. On 30 December 2021 and 5 January 2022, he made a claim for non-refoulement protection by written signification. 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. 3.His personal background, the factual background leading to the present application, 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[1] for reference. In gist, he claims, if returned to Vietnam, he will be harmed or killed by a moneylender for being unable to repay the loan he had borrowed from the moneylender for purchasing a fishing boat used in his business. 4.The Applicant’s case is as follows. He was educated up to junior secondary school level. From 2002 to 2018, he helped his parents in fishing. He started his own fishing business in 2018. He borrowed one billion Vietnamese Dongs (“Dongs”) from a moneylender with triad background at a monthly interest of 10 million Dongs. He had to repay both principal and interest by early 2021. His business was adversely affected by Covid-19 and was unable to pay interest since January 2021. 5.The moneylender visited his parents’ home where he and his family lived with more than 20 underlings to collect payment. He was hit by one of the underlings. Upon his pleading, he was allowed extension of time to pay until April 2021. He reported the assault to the police station in Quynh Lap, but the police refused to help him. Then he and his family moved to live with his mother-in-law. 6.Since February 2021, the moneylender continuously called the Applicant for repayment. He also visited his parents’ home with his underlings and asked for his whereabouts. They vandalised his parents’ home and took away his fishing boat. They never hurt his parents. The Applicant could not bear the harassment and fled to Hai Phong, Hanoi and other places. Eventually, he came to Hong Kong in November 2021. The Board’s finding 7.The Board have grave doubts about the Applicant’s case. It could not be sure if the issue of debt, the violence or the threats ever existed. It rejected his evidence, but nevertheless assessed his claim on the basis of the case as he asserted and some further finding of fact on the basis of the Applicant’s case and credible country of origin information (“COI”) which the Board had consulted. 8.The Applicant had been assaulted by the moneylender’s underlings once. He did not suffer any severe injuries and recovered within a month. The moneylender gave him extension of time to pay. He had ample opportunities to coerce the Applicant by hurting his parents and family members, but he never did. It found the moneylender’s purpose in assaulting the Applicant was to coerce him to repay the loan and interest but had no intention to harm or severe injure him. It found there was insufficient evidence to establish that the Applicant would face any foreseeable and real risk of severe harm or a well-founded fear of persecution for a reason enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol upon his refoulement to Vietnam. 9.The Board researched extensively into the COI. It accepted that though there are problems and corruption in the Vietnamese police and public sectors, the Vietnamese government has taken positive measures to reform and remedy its deficient and corruptive system. It found the government had determination to combat corruption and the loan sharking problem in Vietnam. The government has set up a special police unit to crack down on illegal loan sharking and debt collection activities. There are avenues for complaint against the police for misconduct and abuse of power. It was satisfied that adequate state protection would be available to the Applicant on his return to Vietnam. 10.Given the geographical and population size, the Board found the Applicant could also avoid the risk of harm from the moneylender by internal relocation to cities like Hai Phong and Hanoi where he had previously moved to and other cities such as Ha Long and Danang. It considered it unrealistic to speculate that the moneylender would have the ability and resources to conduct a nation-wide search for the Applicant. 11.Applying the law applicable to non-refoulement protection to the Applicant’s case as she asserted and the Board’s further finding, the Board found the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the applicable grounds. Hence, it dismissed his appeal against the Director’s Notice. Legal principles applicable to judicial review 12.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 13.At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements. However, he had advanced six grounds in his Form 86. 14.The Court is familiar with these grounds as it had seen them in many other leave applications. They are general accusations without particulars. The Applicant said they were prepared by his friend based on what he told his friend. He said he understood the grounds and would be able to provide particulars or elaborations. However, when particulars were asked for, he was unable to provide any meaningful particulars. Some of these grounds are directed at the Director. For the benefit of the Applicant, the Court assumes that all the grounds are directed at the Board. Ground (1) - The Decision is wrong, unreasonable and unfair 15.The Applicant said he could not remember what was wrong or unreasonable or unfair in the Decision. He admitted there was nothing in this ground. Indeed, in answer to the Court’s earlier question, he confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision. Ground (2) – The Director did not give proper weight to the presence of state acquiescence 16.After this ground was explained to him, the Applicant admitted that there was no evidence of state acquiescence. The Court could find no evidence of state acquiescence in its overall scrutiny of the Decision. Ground (3) – The Board acted improperly and unfairly by giving undue weight to COI and failed to consider the Applicant’s personal background 17.The Applicant had no challenge against the COI but sought to rely on his personal background. He said his right leg had been broken by the moneylender’s underlings and he was given a fixation by the hospital, presumably in Hong Kong. He said the screws and metal plate are still in his right leg. He said he had reported that to the police (presumably in Vietnam) but the police did not help him. This is some new evidence which never appeared in the Board’s Decision or the Director’s Notice. His evidence before the Director during the screening interview was that he was hit by the moneylender’s underlings all over the body including his face, forehead and suffered pain and swelling. He did not seek medical treatment and the injuries recovered in a month. There was no mention of fixation in his right leg. He never raised such injuries before the Board. This Court dismisses this ground as an unfounded recent concoction. Ground (4) – The Board acted improperly and unfairly when assessing whether to accept the Applicant’s explanation by requiring him to respond to questions which he was not in a position to respond 18.The Applicant was unable to give particulars of the explanation he gave to the Board or the questions asked by the Board which he was not in a position to respond. He said this ground was written by his friend. In the absence of particulars, this ground could not be explored. Ground (5) – The Director acted unfairly be failing to take such argument into account or give it enough weight 19.The Applicant said this ground was written by his friend and he did not know what was the factual basis for this ground. In the absence of particulars, this ground is not substantiated. Ground (6) – The Board should have allowed instead of dismissed the appeal 20.The Applicant repeated his case and reiterated his fear and risk. This is 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. The Court shall bear this ground as well as the other grounds in its overall scrutiny of the Board’s Decision. Overall scrutiny 21.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 Unified Screening Mechanism (“USM”); the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of the case as he asserted. It made some further finding of facts based on the evidence in his account, such as that the injuries he suffered was not serious, that the moneylender had no intention to kill him, that the government or its officials were not involved in inflicting the ill-treatment and injuries on him and that the ill-treatment he suffered were not on account of a Convention reason. It found on the basis of the COI, that adequate state protection would be available in Vietnam and he could relocate to other cities to avoid the risk of harm. Then, applying the law applicable to non-refoulement protection to the Applicant’s case and the further finding of fact, it found the Applicant had failed to establish the factual basis to support his claim to protection under any of the applicable grounds under the USM. These are mixed finding 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 22.For the above reasons, the Applicant’s leave application is refused. Dated the 8th day of October 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
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