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

HCAL 2598/2019

[2025] HKCFI 1114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2598 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 2 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. However, she was absent at the hearing on 5 March 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 49, is a national of Vietnam. The applicant arrived in Hong Kong illegally by boat on 23 March 2015 and surrendered to the Immigration Department on 26 March 2015. She lodged her non-refoulement claim on the same date.

5.The applicant’s claim was based on her fear of being harmed or killed by her creditor because of her inability to repay a debt.

6.According to the applicant, the applicant failed to repay her debt of VND 300 million and was required to pay VND 6 million to her creditor every month as interest. The applicant outlined three incidents where she had suffered from a threat, and then assaults resulting in injuries.

7.Details of her claim are set out at paragraph 6 of the Notice of Decision dated 27 November 2017 by the Director (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 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”).

9.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: past ill-treatment from the creditor never showed any real intention to cause any serious harm or even kill the applicant or materialize their threat [11]; state protection was available [12]; and internal relocation alternatives were available and reasonable. [13]

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 24 June 2019, the Board conducted an oral hearing for her.

11.Having considered the evidence, the Board considered that the applicant’s dispute is a civil case for debt dispute [63] and found that there was no evidence that the creditor had any connection with the government or any other official acting in an official capacity [63-64]. In any event, having reviewed the various Country of Origin Information, the Board found that state protection was available [65-71] and the Board was satisfied that it would not be unreasonable or unduly harsh for the applicant to internally relocate [72-77]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

12.The applicant has filed Form 86 dated 6 September 2019 for leave to apply for judicial review of the Board’s Decision.

13.The applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

14.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).

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

16.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.”

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

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

DISPOSITION

19.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.