Vu Thi Hien v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2553/2019 on BabelCite. This High Court CFI judgment was delivered on 29 April 2025.
1. This is an application by Madam Vu Thi Hien (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 30 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 April 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).
Cites 8 cases
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HCAL 2553/2019 [2025] HKCFI 1749 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2553 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observation for the Applicant: Introduction 1.This is an application by Madam Vu Thi Hien (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 30 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 April 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”). Background of the Applicant and the Claim 2.The Applicant is a Vietnamese. She was born on 30 December 1986 in Hai Phong. She received about 11 years of education. 3.The Applicant claimed that her creditor in Vietnam (“Creditor”) would harm or kill her because of an outstanding debt. She claimed that she borrowed VND 350 million from the Creditor in 2009 (“Loan”). The Loan was due in 5 years and the monthly interest rate was VND 1.5 million. She used the money to setup a seafood business (“Business”). 4.The Applicant was able to pay back the interest for the first few months using the money generated from the Business. The Business faltered when the Applicant’s husband (“Husband”) became a drug addict and kept asking the Applicant for more and more money for drug. 5.The Applicant had to borrow moneys from her parents to make interest payments and repay some principal of the Loan. On one occasion in the summer of 2010, when the Applicant refused to give money to Husband, he burnt down the shop operating the Business. Since then, the Applicant was unable to make further payment to the Creditor. 6.The Creditor and her associates came to the Applicant’s mother-in-law’s home twice to chase the Applicant. The Creditors and her men also came to the Applicant’s parents’ home twice in April or May 2012 to chase the Applicant for repayment and verbally threaten her. 7.The Applicant did not report the Creditor to the police but fled to Hanoi, Nam Dinh City and Mainland China to avoid the Creditor. She made some money working illegally in a factory in Mainland China and paid some money to the Creditor in 2012 and 2013. She returned to Vietnam after the factory she worked in Mainland China was raided many times. 8.The Applicant returned to Vietnam in 2014 and was harassed by the Creditor and her men. The Creditor told the Applicant that if she had no money for repayment, they would make her life difficult and took away her parents’ belongings. 9.The Applicant left Vietnam on 21 June 2016 and sneaked into Hong Kong on 26 June 2016 via Shenzhen. She surrendered to the Immigration Department on 27 June 2016 and lodged the Claim. 10.The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):
11.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal. 12.On 3 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party. Legal principles applicable to judicial review 13.In a judicial review, the court does not step into the shoes of the decision makers. 14.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
15.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 16.In the Form 86, the Applicant did not put forward any ground for her intended judicial review. 17.The Applicant failed to attend the court hearing scheduled for 1 April 2025 despite a notice of hearing dated 6 March 2025 having been sent to her and not being returned. In fact, she had also failed to respond to a letter dated 16 January 2025 previously sent to her by the court inviting her to send her submissions to the court. In such case, I proceeded to deal with the Applicant’s application for leave for judicial review of the Board’s Decision according to the papers already placed before the court. 18.In the Supporting Affirmation, the Applicant repeated her claims and exhibited only the Board’s Decision as exhibit. She stated that the Creditor assaulted her and threatened to take her life. She alleged that she was injured in the assault. The Applicant did not mention to the Director or the Board that the Creditor had physically assaulted and injured her. She provided no particulars nor supporting documents in the Supporting Affirmation for the alleged injuries. Such bare assertion is not reasonably arguable ground for judicial review. 19.Based on evidence adduced by the Applicant, the Board found that apart from uttering threats to the Applicant, the Creditor and her men did not inflict any harms and injuries on the Applicant nor did they adopt a more serious approach towards her even though they knew that the Applicant had fled to different places for avoiding them. They still gave her many chances to make repayment. This was an indication that they had more interest in the money than the life of the Applicant. The Board did not accept that the Applicant faced any serious risk of harm from the Creditor upon her return. 20.The Board noted that there was no evidence to connect the Creditor to the Vietnamese government. There was nothing to suggest that the Vietnamese government knew or acquiesced to the Creditor’s actions. The Applicant’s dispute with the Creditor was a civil debt dispute case only and she sustained no pain or suffering but only threats from the Creditor and her men. Her experience fell far short of the “severe pain or suffering” whether physically or mentally required by the law to qualify for being “torture” under Section 37U(1) of the Ordinance. 21.After considering the relevant country of origin information, the Board found that state protection was available to the Applicant (§§57-64 of the Board’s Decision). Furthermore, internal relocation to Ho Chi Minh city or Hanoi would also be viable for the Applicant (§§65-70 of the Board’s Decision). 22.As pointed out in the Nupur Mst (supra) case, assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board. 23.Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 24.The Board found that there were no substantial grounds showing a foreseeable and real risk of the Applicant facing the torture risk. On the basis of the Applicant’s evidence, she could not show that there was a genuine and substantial risk of harm to her in violation of BOR 3 if she were refouled to Vietnam. The Applicant’s fear was not on account of any of the reasons referred to in Article 33 of the Refugees Convention. The Applicant’s situation fell far short of establishing “persecution” and there was no substantial future risk of the same as reasonable state protection was available to her. The Board also found that there was not a real risk that the Applicant would arbitrarily be deprived of life, have the death penalty imposed on her or otherwise be deprived of her rights under BOR 2. 25.It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection. These are findings of fact which were exclusively within the province of the Board, which the court in a judicial review would 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 Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success. Conclusion 26.In the premise and having considered the Board’s 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 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. Dated the 29th 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
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Cases cited in this judgment