Hoang Thi Linh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2372/2019

[2025] HKCFI 205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2372 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 1 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested a hearing. She appeared before the Court on 23 December 2024.

The applicant

3.The applicant, aged 31, is a Vietnamese. She entered Hong Kong illegally on 15 August 2015 and was arrested by the police on 2 September 2015. The applicant made a non-refoulement claim on 5 September 2015. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor (“the creditor”), who had triad background, because she failed to repay the loan owed to him.

4.According to the applicant, she borrowed a loan from the creditor in July 2014 to startup her clothing business. Due to her failure to repay instalments after September 2014, she was threatened by the creditor as well as his underlings and her home was also looted by them between October 2014 and November 2014.

5.Nothing eventful happened between December 2014 and March 2015 as the applicant was able to repay her instalments during this period. In April 2015, she could not afford paying her instalments again and she relocated to her sister’s home in May 2015. On 1 June 2015, the applicant was informed by her sister that the creditor had come to chase for loan repayment. Out of fear, the applicant left for Mainland China illegally on 26 June 2015 and she eventually sneaked into Hong Kong on 15 August 2015.

6.The applicant had maintained contact with her sister and was told that the creditor was still after her. She was of the view that she could not seek protection from the police because they were corrupted. She also considered internal relocation not viable because the creditor could utilise his triad network to locate her anywhere in Vietnam.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 26 September 2017 (“the Director’s Decision”).

The Director’s Decision

8.The Director considered the applicant’s claim in relation to the following risks:

(a) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

(d) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the past ill-treatment from the creditor failed to attain a minimum level of severity [13.1]; (ii) there was no evidence showing that the creditor was in anyway connected to the Vietnamese authorities or that he had the means to locate the applicant anywhere within Vietnam [13.2]; (iii) the conduct of the creditor indicated that he had no real intention to seriously harm or kill the applicant [13.3]; (iv) part of the applicant’s claim was based on hearsay rather than her own experience [13.4]; (v) state protection would be available and there were also measures taken by the Vietnamese government to combat corruption [14]-[21] and (vi) internal relocation would be viable [22]-[28].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 18 June 2019, the Board conducted a hearing.

11.The Board noted material discrepancies in the applicant’s evidence regarding (i) the loan amount [93]-[95]; (ii) when she started her business [96]; (iii) whether she suffered any physical harm from the creditor [97]-[100]; (iv) whether the creditor had made enquiries about her background before lending her money [101]-[102] and (v) whether she had any employee for her business [104].

12.The Board found the applicant lacked relevant knowledge towards her own business [103]. It was also found implausible that the expenditure of her business would be greater than the income [105]-[108] and that she could start her business immediately upon getting the loan as the country of origin information indicated that there were lots of formalities to go through [128]-[130].

13.In relation to the loan from the creditor, the Board considered it weird that the applicant could sometimes afford paying instalments and could not in other occasions [112]-[114]. The Board also considered it implausible that the creditor would lend such a large sum of money to the applicant for starting up her business given her background, working experience and past income [131]-[138].

14.The fact that the applicant did not seek non-refoulement protection immediately upon arriving in Hong Kong [122]-[124] and her failure to seek protection in China further damaged her credibility [125]-[127].

15.The Board found the applicant was not a witness of truth and that her claims could be given no credence. In light of the applicant’s background, employment history, past income and lack of basic knowledge relating to her business, the Board did not accept that she had borrowed a large sum of money from the creditor to startup a business and considered this simply to be a fabrication [142]-[146], [189]-[191].

16.Based on such findings and given that there was no evidence of involvement from the Vietnamese government in the matter while the claimed harm also failed to reach the requisite level of severity, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [153]-[175], [192], [196]-[199]. In any event, state protection [147]-[151], [193]-[194] and internal relocation [176]-[188], [195] would also be available to the applicant.

17.The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

18.The applicant has filed Form 86 dated 15 August 2019 for leave to apply for judicial review of the Board’s Decision.

19.The applicant did not raise any specific ground in support of her application.

DISCUSSION

20.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board did not accept his evidence and asked this Court to review it.

22.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

23.The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Court has no reason to interfere with it.

24.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

25.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

The applicant appeared in person.