Nguyen Thi Than v. Torture Claims Appeal Board

HCAL 120/2020

[2025] HKCFI 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 120 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 13 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 23 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000120_2020_files/the_Board's_Decision.pdf

2.The Board decided that the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 September 2017 failed, and hence confirmed the said decision. [1]

Amendments

3.In the title of Form 86, the applicant wrongly named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as “1^st Putative Respondent” and “Director of Immigration” as “2^nd Putative Respondent”.

4.The correct putative respondent should just be the “Torture Claims Appeal Board”. The “Non-refoulement Claims Petition Office” is just an office providing administrative and secretariat support to the adjudicators of the “Torture Claims Appeal Board”, and should not be named as a putative respondent at all.

5.Also, the Director should not be named as “2^nd Putative Respondent” in the title of Form 86, although the applicant did correctly state in the contents of Form 86 that the Director was a putative interested party.

6.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the Director is added as the putative interested party.

The applicant’s case

7.The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)  The applicant is a female Vietnamese born in Phuong Bach Dang, Tinh Quang Ninh, Vietnam on 13 October 1960. She had 7 years of education. She worked as a farmer for 30 years and operated an aquaculture business for 5 years.

(2)  The applicant claimed that she feared harm from a moneylender named Vu Thi Nam (“Vu”) and his associate named Hung because of her inability to repay Vu the debt of VND 700 million that she borrowed in December 2010, as Vu had threatened to chop off her limbs and ears, as well as to kill her. Upon suggestion by her friend, the applicant left Vietnam to seek protection in Hong Kong.

(3)  The applicant sneaked into Hong Kong from Shenzhen, China on 29 November 2015. She was arrested by the Hong Kong police on the same day. She made her first claim for non-refoulement protection on 2 December 2015.

(4)  The Director rejected the applicant’s non-refoulement claim on 22 September 2017, and the applicant filed an appeal against that decision on 3 October 2017. As aforesaid, the Director’s decision was confirmed by the Board’s Decision.

Grounds for judicial review

8.The applicant is required to identify clearly the grounds for her intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

9.However, the applicant did not advance any ground for her intended judicial review in Form 86 nor in her supporting affirmation dated 13 January 2020.

Oral hearing

10.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 11 March 2025.

11.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn her request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

12.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Discussion

13.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 [2018] HKCA 524).

14.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 a reasonably arguable claim which enjoyed realistic prospects of success.

15.Without the applicant raising any specific ground, it is difficult for this court to entertain the Leave Application. However, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities.

16.In assessing the appeal by the applicant, the Board held an oral hearing on 11 July 2019 in the presence of an interpreter to assist the applicant whose mother tongue is Vietnamese. The applicant was present and was given the chance to present her case and grounds of appeal to the Board in person.

17.The Board re-assessed the applicant’s claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”), namely:-

a.  risk of torture under Part VIIC of the Immigration Ordinance;

b.  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

c.  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

d.  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

18.The Board found that throughout the whole period, despite the applicant’s inability to settle the loan, Vu and Hung only uttered verbal threats to her without physically harming her. The Board considered that if Vu and Hung had the real intention to severely harm or kill the applicant, they could have done so in the past. Hence, the Board concluded that the purpose of such verbal threats was to give pressure on the applicant so that she would speed up the repayment, which was common tactic used by moneylenders against debtors.

19.Moreover, the fact that the applicant could have fled from Vietnam to Hong Kong via mainland China on her own indicated that she was fit physically and mentally. The Board found that the monetary dispute between the applicant and Vu was private in nature, which was not a ground for non-refoulement protection under the USM.

20.In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information (“COI’) for the applicant’s country from different sources. While noting the problem of corruption and the widespread of illegal loan shark activities in Vietnam, there was evidence from reliable COI that showed the authorities has enhanced their action in cracking down loan sharks and further to proactively prevent and strictly handle loan shark related crimes. The Board considered that the applicant should be able to obtain assistance from the police and authorities if she needed it. The applicant’s assertion that the police would not help her was just the applicant’s speculation, as the applicant has never sought assistance from the police when she was in Vietnam.

21.The Board also considered the viability of internal relocation for the applicant. The Board found the applicant’s feared threats from Vu was a localised one, which could be reduced or negated by internal relocation. The applicant has ample working experience and it would not be unduly harsh for the applicant to relocate to other parts of Vietnam.

22.Moreover, the Board also considered the applicant’s medical condition as she had raised before the Board that she wanted to stay in Hong Kong to receive medical treatment for her liver disease. The Board found that the applicant would have access to reasonable medical facilities and support upon her return to Vietnam.

23.The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

24.After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant’s feared ill-treatment, risk of right to life, risk of torture and risk of persecution could not be established. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the aforesaid applicable grounds.

25.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

26.The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

27.For reasons aforesaid, the Leave Application is dismissed.

Dated the 10^th day of April 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

Form CALL-1