HCAL 2850/2018

[2020] HKCFI 2709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2850 of 2018

BETWEEN

LE, Duc Minh Applicant

and

Torture Claims Appeal Board/ Putative

Non-refoulement Claims Petition Office Respondent

and

Director of Immigration Putative

Interested Party

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 oral submission by the Applicant in open court;

Order by Deputy High Court Judge P.Li :

Leave to apply for Judicial Review be refused.

Observations for the Applicant :

1. The applicant entered Hong Kong from China illegally on 28 November 2015. He
surrendered to the Immigration Department on 2 December 2015. He was released on
recognisance on the same day. He filed his non-refoulement claim on 12 September
20161.

2. The basis of his claim was that he would be harmed or killed by Tran Quyet, the
moneylender, if he returned to Vietnam.

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On all grounds including “torture risk” under Part VIIC of the Immigration Ordinance.; “BOR 2”—
right to life under article 2 of HKBORO; “BOR3”—CIDTP under article 3 of HKBORO and
“persecution risk” under article 33 of the Convention relating to the Status of Refugee.
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3. The Director of Immigration (‘the Director’) dismissed his claim on 15 March
2017. His appeal to the TCAB was dismissed on 6 December 2018. He filed an
application for leave for judicial review on 12 December 2018.
Background
4. The applicant was born on 3 March 1989. He was brought up in Trang Cat, Hai
An, Hai Phong, Vietnam. He was single. He had no siblings. His parents had passed
away. He studied up to grade 7 in a secondary school.

5. He was a farmer after leaving school. In 2012, he worked as an apprentice in

repairing cell phones. Around 2014, he borrowed a billion Vietnam currency (“Dong”)
from ACB Bank to start his cell phone trading business. A few months later, he was
unable to repay the bank loan. He then borrowed 2 billion Dong from Quyet to repay the
bank loan and continued with his business. He had to pay a monthly interest of 20 million
Dong. At that time, he did not know Quyet was a triad boss and had connections with
local government officials and the police. This information was from a friend.

6. In 2015, his business turned bad. He was unable to pay any interest to Quyet who
harassed and assaulted him. There were 4 incidents of assault by several men armed with
sticks. He had bruises and swelling all over his body. He took painkillers and applied
ointment for treatment. He had once reported the assault to the police at Lach Tray Street
Police Station. The police refused to investigate without giving reasons. He did not report
to other police station.

7. After the last assault, he was in fear and left home to live in his friend’s house. It
was about half an hour drive from his home. In November 2015, he decided to leave
Vietnam. While in Hong Kong, his friend told him not to return to Vietnam as Quyet was
still looking for him.

The decision of the Director of Immigration

8. As the applicant had a full hearing in TCAB. I would concentrate on that decision
so far as this leave application is concerned. I however would briefly mention the
decision of the Director for the sake of completeness.

9. The Director concluded that the risk of harm from Quyet was low for the
following reasons:
(a) The assaults in the past were of low intensity. The applicant did not need
professional medical treatment. He recovered in a few days. This did not satisfy
the criterion of minimum level of severity.
(b) While the applicant stayed away from home at his friend’s house, nothing
happened to him. This show Quyet’s influence was quite localised.
(c) After considering the COI, the Director found that there was reasonable state
protection. There was no evidence that the police inaction was systematic. In fact,
the applicant had not report to other police stations.
(d) Internal relocation was permissible under the law in Vietnam. It was not unduly
harsh for the applicant to relocate to Ho Chi Minh City or Da Nang. There should
not be any language or ethnic problems.

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10. There was no genuine and substantial risk of ill-treatment or arbitrary deprivation
of life if he returned to Vietnam. The claim under BOR 2 and 3 were rejected.

11. The ill-treatment to the applicant by Quyet arose from a loan dispute. He could
leave Vietnam on a valid passport. His situation was not within the ambit of ‘persecution’
as defined under the Refugee Convention. The claim of persecution risk failed.

12. There was no severe pain or suffering amounting to ‘torture’ as defined under
s.37U (1) of the Immigration Ordinance. There was no evidence that the conduct of Quyet
was instigated by any public officials or under their acquiescence. The applicant was not
targeted by the Vietnam government. The torture claim failed.

The decision of TCAB

13. An oral hearing was held on 12 September 2018. The applicant gave evidence.
The content of the non-refoulement claim form (‘NCF’) and the record of interview by
the Director were considered.

14. The Adjudicator pointed out various aspects of the applicant’s evidence which
showed that he was unreliable. The following is some examples:
(a) The applicant alleged in the NCF that he borrowed money from Quyet at a lower
interest rate than the loan from ACB Bank. The adjudicator thought this was
impossible.
(b) The applicant mentioned a different amount of loan in his NCF and the notice of
appeal. He could not explain the discrepancy. 2
(c) The applicant gave contradictory explanations as to why he carried his passport to
Hong Kong albeit that he entered Hong Kong and China illegally. He initially said
it was posted to him from Vietnam after he arrived at Hong Kong. In fact, he
handed in the passport to the Immigration when he surrendered himself. He then
explained that his passport was left behind in his luggage while sneaking to Hong
Kong. It was eventually handed over to him by someone through the arrangement
of a middleman in Hong Kong. The latter arranged for his illegal entry to Hong
Kong.
(d) The applicant was a poor farmer. It was unbelievable that he could borrow such a
large loan from the bank and Quyet.
(e) The applicant gave contradictory version as to the ownership and sale of his house
and land.
(f) The applicant was only a cell phone repairer. The adjudicator found it
unreasonable that he could start a cell phone trading business in such a short time.
The applicant was not familiar with the procedures of setting up a business in
Vietnam. His knowledge on registration of business and VAT was contrary to the
content of the COI.
(g) During the hearing, the applicant told the adjudicator that he gave a full statement
to the police. He was told to wait pending investigation. However, in his NCF, he
said the police refused to do anything as Quyet had strong connections with the
police.

2
One billion from ACB Bank and two billion from Quyet according to NCF. Only 100 million and 200
million during his oral evidence and in the notice of appeal.
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15. Given the above, the adjudicator rejected the applicant’s version of facts in
support of his non-refoulement claim.

16. Having considered various COI Reports, the adjudicator concluded that there was
reasonable state protection in Vietnam had the applicant resorted to it. The adjudicator
found that the applicant had never reported to the Vietnam authorities.

17. In relation to torture risk under the Immigration Ordinance, the adjudicator found
that there was no ill-treatment by Quyet. The applicant had not reported the incidents to
the police. The dispute was a private one and there was no involvement of any public
official. The was reasonable state protection in Vietnam. Internal relocation was viable.
This claim failed.

18. The applicant’s evidence of ill-treatment failed to satisfy the ‘minimum level of
severity’. In fact, the adjudicator rejected that the applicant was ill-treated. The various
COI reports indicated that there would be reasonable state protection. The applicant failed
to show there would be genuine and substantial risk of more severe ill-treatment if
returned to Vietnam. The BOR 3 ground failed.

19. Likewise, the applicant failed to establish any risk of violation of BOR 2—right to
life. The dispute was purely private and no official involvement.

20. The applicant and his family were not members of any group relevant to
persecution risk. He was not a refugee defined under Article 1 (A) (2) of the Refugee
Convention. The applicant failed to prove that there was well founded fear of ill-
treatment. There was no evidence that Vietnam government could not provide protection.
It was not unreasonable for the applicant to relocate in Vietnam. The persecution ground
failed.

Judicial Review
21. The applicant did not request for a hearing. In his affirmation in support of the
leave application, he claimed that he could not repay the loan as interest had accumulated
to a large sum. Quyet and his underlings would even kill him. There was no specific
complaint about the decision of the adjudicator.

22. The adjudicator had set out the legal principles in detail. He had considered the
evidence thoroughly. His findings were well substantiated by the evidence.

23. Having considered the decision of the adjudicator, I agree with his reasoning set
out above. The story of the applicant was not credible. There is no error of law or
procedure.

24. In my judgment, the Applicant’s claim is not reasonably arguable. There is no

realistic prospect of success. I refuse leave for judicial review.

Dated the 23rd day of October 2020

(Mike Mak)
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 for Registrar, High Court

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 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
Notes for the Applicant:
If leave has been granted,
the Applicant or the
Applicant’s solicitors must:
a) serve on the respondent
and such interested parties
as may be directed by the
Court the order granting
leave and any directions
given within 14 days after
the leave was granted
(Order 53, rule 4A);
b) issue the originating
summons within 14 days
after the grant of leave and
serve it in accordance with
Order 53, rule 5; and
c) supply to every other
party copies of every
affidavit which the
Applicant proposes to use
at the hearing, including
the affidavit in support of
the application for leave
(Order 53, rule 6(5)).
Form CALL-1
Sent to the Applicant / the
Applicant’s solicitors
on 23 October 2020
LE Duc Minh
Applicant’s ref. no:
Nil.
Sent to the Putative Respondent /
the Putative Respondent’s
solicitors / such Putative Interested
Parties as may be directed by the
Court / the Putative Interested
Parties’ solicitors on 23 October
2020
Torture Claims Appeal Board/
Non-refoulement Claims
Petition Office
Putative Respondent’s ref. no.:
USM 6666/17/3/321/V1121
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 468/17 (formerly RBCZ
13280/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)