Nguyen Thi Trong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 572/2023 on BabelCite. This High Court CFI judgment was delivered on 12 February 2025.
1. This is an application by Madam Nguyen Thi Trong (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 18 October 2022 (“2022 Board Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 26 November 2020 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“2020 Claim”).
Cites 9 cases
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HCAL 572/2023 [2025] HKCFI 497 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 572 of 2023
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai:
Observations for the Applicant: Introduction 1.This is an application by Madam Nguyen Thi Trong (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 18 October 2022 (“2022 Board Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 26 November 2020 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“2020 Claim”). Background of the Applicant 2.The Applicant is a Vietnamese. She was born on 27 September 1978 in Hai Phong City, Vietnam. She received 4 years of education and had 8 years of work experience. The Claim and Procedural history 3.The Applicant claimed that she started a marine farm (“Farm”) with her husband (“Husband”) in around 2010. Husband borrowed VND 60 million from the Government Bank in Cat Hai to start the Farm. They needed more money and Husband borrowed VND 500 million (“H Loan”) from a woman (“H”). 4.The Applicant claimed that H was a well-known moneylender in Cat Hai. The monthly interest for the H Loan was VND 5 million and there was no due date for repayment of the principal. 5.At the beginning, the Applicant and Husband operated the Farm successfully and made about VND 5 to 10 million every month. However, increasing pollution in the area and a big storm in around July 2014 destroyed the facilities at the Farm and the Farm was closed. 6.Husband stopped paying the monthly interest of the H Loan to H in August 2014. H visited the Applicant’s home in August 2014 and threatened to beat up the Applicant and Husband unless they sold their properties to repay her. 7.In September 2014, a group of 4 or 5 men went inside the Applicant’s home and attacked Husband. The assailants fled when Husband screamed for help. The Applicant was not harmed during this incident. 8.Husband was taken to a private doctor after the attack. One of his bones had to be stabilized with pins and he also received many stitches to close his wounds. Husband stayed with the doctor for one month. 9.The Applicant and Husband returned home after Husband’s treatment, where they stayed for three months. One day, H went to their home and threatened to kill them if they did not pay her back. The Applicant and Husband therefore decided to flee to Mong Cai, where they stayed for about 2 or 3 months. In April 2015, they fled to Hong Kong to seek protection. 10.After entering Hong Kong illegally, the Applicant and Husband lodged a claim for protection on 13 April 2015 (“2015 Claim”). The 2015 Claim was rejected by the Director on 5 May 2017 and their appeal to the Board was dismissed by the Board’s decision dated 13 September 2017 (“2017 Board Decision”). The Applicant was removed to Vietnam on 18 September 2018. 11.After being removed to Vietnam, the Applicant returned to her home. H located her two days after she arrived. The Applicant eventually reached an agreement with H whereby the Applicant and Husband agreed to pay VND 1 billion to H over time. H did not harm the Applicant after her return to Vietnam. 12.In 2018, the Applicant borrowed VND 500 million (“T Loan”) at monthly interest of VND 25 million from yet another moneylender (“T”) to open a restaurant. The restaurant business failed again. The Applicant was unable to repay the T Loan. She fled to Hanoi with Husband but she was caught by T’s men and beaten up. 13.The Applicant claimed that she was pursued by both H and T (together “Creditors”), so she fled to Hong Kong again. The H Loan and T Loan together are referred to as “the Loans” herein below. 14.The Applicant arrived in Hong Kong illegally and was later arrested by the police on 13 March 2020. By a written representation of 6 August 2020, the Applicant lodged the 2020 Claim. 15.When the Applicant was in Hong Kong, she was informed by her mother that the Creditors kept sending people to the Applicant’s house to look for the Applicant and Husband. The Creditors did not harm the Applicant’s mother. 16.The Director had considered the 2020 Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:
17.By the DOI Decision, the Director refused the 2020 Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the 2022 Board Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal. 18.On 12 April 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the 2022 Board Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents. 19.On 20 September 2024, the court received an undated letter from the Applicant (“Letter”). In the Letter, the Applicant requested to withdraw and close all her case and to cancel the Form 86 because she wanted to go back to her country (“Withdrawal Application). 20.By a further letter dated 2 October 2024 sent to the Director but addressed to the court, the Applicant repeated her request to withdraw this judicial review. She stated that her problem back home was solved and it was safe for her to return. 21.On 20 January 2025, the Director informed the court that the Applicant had been removed in January 2025. In such case, I decided to deal with this application according to papers already placed before the court. 22.Order 53 rule 4(1) of the Rules of the High Court provides that:
23.The 2022 Board Decision was issued on 18 October 2022. As such, the Applicant should have filed the Form 86 latest on 18 January 2023. The Form 86 was filed on 12 April 2023 and it was late. 24.No application for extension of time to file the Form 86 was made by the Applicant. 25.The Applicant was late for more than 2 months in filing the Form 86. This is a substantial delay. However, the Applicant has not applied for time extension to file the Form 86. No explanation has been provided by the Applicant for her late filing of the Form 86. As such, I have no basis to extend the time for the Applicant to file the Form 86 in this case and this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay. 26.For the sake of good order and completeness, I shall consider the merits of the Applicant’s application for leave for judicial review before deciding on how to dispose of the matters. The DOI Decision 27.The Director noted that H never physically harmed the Applicant and T only attacked her once. The Director did not accept that the asserted ill-treatments, whether physical or mental, inflicted upon the Applicant by the Creditors had attained a minimum level of severity. The low intensity and low frequency of past ill-treatment from the Creditors was indicative of a small future risk of harm upon the Applicant’s return to Vietnam. The Creditors also never harmed the Applicant’s mother in Vietnam. This showed that the Creditors did not really intend to kill or seriously harm the Applicant. They only wanted to press her to repay the Loans. 28.The Applicant’s problems with the Creditors were solely derived from private loan disputes. There were no substantial grounds to believe that further action (if any) by the Creditors would be inflicted by or at the instigation of or with the consent or active/passive acquiescence of a public official or other person acting in an official capacity. The Vietnamese government was not involved in, indifferent to or provided any form of encouragement to the Creditors in threatening, attacking or killing the Applicant. The Applicant was not a target of the Vietnamese government nor did they had any adverse interest in the Applicant. 29.On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary. 30.The Director further found that internal relocation would be viable to the Applicant. If the Applicant moved to Ho Chi Minh City or Nha Trang City, the Creditors would have great difficulties in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life. 31.For the reasons set out in the DOI Decision, the Director rejected the Claim. The 2022 Board’s Decision 32.The Applicant was absent from the hearing before the Board despite notice of hearing having been sent to her on 21 June 2022 and not being returned. After the Applicant failed to attend the hearing scheduled for 26 July 2022, the Board sent a letter to the Applicant requiring her to explain for her absence within 7 days. No response was received from the Applicant and the Board proceeded to consider the matter according to the papers placed before the Board which included the Applicant’s statements, transcripts of the Applicant’s interviews with the Immigration officers, the DOI Decision, an index of extracts of COI relied upon by the Director and brief skeleton submissions for the Director. 33.By reference to the guidance of the UK Immigration Appeal Tribunal set out in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702, [2003] Imm AR 1, the Board treated the 2017 Board Decision as the starting point. The 2017 Board Decision found that no real risk existed, sufficient protection was available and that internal relocation was a safe and reasonable option. The Board found that the Applicant willingly returned to her home area in 2018 despite the alleged risk from H and the fact that nothing significant happened to the Applicant at the hands of H after her return to Vietnam served as powerful indicators of the correctness of the 2017 Board Decision. The Board started from the point that no risk of serious harm to the Applicant existed from H. 34.The Board noted that the initial statement for the 2020 Claim submitted by the Applicant with her claim form was brief and provided almost no details. Her interview with the Immigration officer was also brief and no attempt was made to test any of the assertions contained in the very brief written statement of the Applicant. The Board was of the view that it would be necessary to question the Applicant closely in order to establish the facts of the 2020 Claim as there were a number of serious issues of inherent plausibility on the face of the papers before the Board and also within the context of the findings made in the 2017 Board Decision. 35.At §§38-44 of the 2022 Board Decision, the Board identified several areas in the Applicant’s evidence which the Board considered as key aspects of the 2020 Claim and required clarification. 36.However, the Board was unable to question the Applicant to clarify these matters as she failed to attend the hearing before the Board without explanation despite having been given due notice in good time. Because of her failure to attend the hearing, her account in the very limited statement provided continued to stand as mere assertion and no explanation of various matters of concern to the Board had been provided. Because of the very limited nature of the Applicant’s statement, the Board did not have a detailed and internally coherent account of the 2020 Claim. 37.The Board held that because the Applicant did not attend the hearing, the deficiencies in her evidence could not be addressed and there was insufficient evidence to establish her claim for protection. 38.The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal. Legal principles applicable to judicial review 39.In a judicial review, the court does not step into the shoes of the decision makers. 40.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
41.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success. Discussion 42.In the Form 86, the Applicant annexed a statement stating the grounds for her intended judicial review. 43.The Applicant put forward the following grounds:
44.In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents. 45.In the Form 86, the Applicant raised various complaints against the Director. However, this is an application for leave for judicial review of the 2022 Board Decision, not the DOI Decision. Hearing for an appeal or a petition before the Board is de novo. Errors made by the Director (if any) will not form grounds for judicial review against the 2022 Board Decision. 46.In any event, the aforesaid grounds advanced by the Applicant in the Form 86 were without particulars. They were only bare assertions. 47.In the Form 86, the Applicant complained that the Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case. This is not right. In §§18-21 and §§37-38 of the DOI Decision, the Director had considered the issues of state protection and state acquiescence in the context of COI. As the Board found that the Applicant had failed to establish her case as she failed to attend the hearing before the Board to clarify various key aspects of the 2020 Claim which causing the Board’s concern, the Board did not have to consider the issue of state acquiescence. Relying on this ground to seek judicial review against the 2022 Board Decision has no merits. 48.The Applicant complained that the Board had failed to take into account her personal background and experience when the Board considered COI. The Applicant did not specify which part of her personal background or experience had been overlooked by the Board. As the Board had found that the Applicant had failed to establish her case, it was not necessary for the Board to consider the COI. This complaint of the Applicant is only an empty bare assertion without substance. 49.The alleged corruption and incompetency of the administration in Vietnam had been considered by the Director in the context of the relevant COI. This complaint has no merits. 50.The Applicant complained that the Board had unreasonably required her to respond to questions that she was not in a position to respond. The Applicant had in fact absent from the hearing before the Board and the Board did not have the opportunity to put any questions to the Applicant. I do not see how the Board might have put any inappropriate questions to the Applicant. This complaint of the Applicant is wholly devoid of merits. 51.The Applicant did not provide any particulars or specifics as to how the Board had erred in the 2022 Board Decision in affirming the DOI Decision, or in what way was the 2022 Board Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 52.Having rigorously examined the 2022 Board Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 53.The Applicant’s failure to attend hearing before the Board to give evidence, to answer the Board’s questions and to deal with matters concerning the Board and her failure to provide any explanation for her absence at the hearing led the Board to conclude that no credence could be attached to her mere assertions. 54.It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the 2022 Board Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 2022 Board Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable. The Withdrawal Application 55.The Applicant subsequently submitted the Withdrawal Application on 20 September 2024 by the Letter. 56.There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition. 57.Apart from the Withdrawal Application, there is nothing outstanding in this action. 58.The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:
Conclusion 59.The Form 86 was filed out of time without leave of the court and having considered the 2022 Board Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the 2020 Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review. 60.The address provided by the Applicant in the Letter was “Castle Peak Bay Immigration Centre”. As the court was notified by the Director that the Applicant had been removed from Hong Kong and she has not provided her new address to the court for service of documents to her, the court will send a copy of this judgment and the sealed order to the Director and request the Director to use his best endeavor to forward them to the Applicant. Dated the 12th day of February 2025.
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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Cases cited in this judgment