Nguyen Thi Dung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2489/2019

[2025] HKCFI 539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2489 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 22 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. However, she was absent at the hearing on 20 January 2025. I shall deal with her application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 67, is a national of Vietnam. She sneaked into Hong Kong illegally on 10 May 2015. She surrendered to the Immigration Department on 12 May 2015. On the same day, she lodged a non-refoulement claim by a written representation on the basis that, if refouled, she would be harmed or killed by the creditor because of her default in loan repayment to him.

5.According to the applicant, in 2007, she borrowed a loan of 200 million Vietnamese currency from a creditor for her son’s truck business. His son was involved in a traffic accident, in which a person was killed. Her son was imprisoned. Therefore she had no money to repay the creditor, who send his subordinates to her to demand payment of the loan. She reported the matter to police, which took no action. She therefore came to Hong Kong.

The Director’s Decision

6.The Director had rejected her torture claim. Therefore, the Director considered the applicant’s claim in relation to the following risks:

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

(b) 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”);

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

(d) 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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) low intensity and frequency of past ill-treatment by the creditor is indicative of low risk if she returns to Vietnam; (ii) state protection will be available; and (iii) internal relocation will be viable. [27]-[33].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 26 June 2019, the Board conducted an oral hearing for her with an interpreter.

9.Having considered the applicant’s evidence, the Board came to the conclusion below:

(a) she had not been assaulted by her creditor;

(b) she may obtain help from the police in Vietnam;

(c) she may live safely in other places in Vietnam; and

(d) her evidence is unreliable. [12]-[13], [18], [23] and [31]-[35]

10.For the above reasons, the Board dismissed her appeal.

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

11.The applicant has filed Form 86 dated 28 August 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has raised no specific reasons to challenge the Board’s Decision.

DISCUSSION

13.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).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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

The applicant was unrepresented and did not appear.