Case Document

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HCAL 238/2022

[2025] HKCFI 1945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 238 OF 2022

BETWEEN
	Tran Thi Hien	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Vietnam who entered Hong Kong illegally on 24 January 2021 and was arrested by police on 27 January 2021. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her unpaid debts.

2.The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school she worked as a tailor, got married and raised a family with a son in her home district.

3.In 2020 she started her poultry business with the help of a loan borrowed from a local money-lender with monthly interest payments which she managed to make from her business income.

4.However, November 2020 she lost her business after all her poultry were wiped out by a plague, and when she defaulted in her loan repayments, her creditor sent men to threaten her, and on one occasion in December 2020 those men beat her severely that she required medical treatments in a local clinic.

5.After that assault the Applicant became fearful for her life and fled from her home to hide in her aunt’s place before moving to another town to stay in a friend’s place, and on 20 January 2021 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 4 June 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 102 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Hanoi where it would be difficult if not impossible for her creditor to locate her.

8.On 21 June 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 3 December 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 15 December 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

10.On 21 April 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)   That the Board wrongly suggested that the Applicant can relocate to other parts of her home country to avoid her creditor which was in fact not feasible due to the many difficulties and obstacles that she would have to face in the new location and without recognizing that loan sharks have nationwide social network and with assistance from corrupt police to locate her that it is simply not feasible for the Applicant to escape from her creditor if refouled to Vietnam;

(2)   That the Adjudicator’s decision is clearly unsafe and wrong to rule against the Applicant as unreliable;

(3)   That the Board’s decision to refuse the Applicant’s claim was wrong.

11.By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.As the last day of the three-month period for her to file her Form 86 fell on 15 March 2022, the Applicant was therefore more than 1 month late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of more than 1 month must be considered as substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 15 December 2021 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her substantial delay.

14.As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision wrong or unsafe or that the Adjudicator had acted procedurally unfair or irrational in his assessment of the availability of reasonable internal relocation. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.Moreover, the Applicant recently on 25 March 2025 in writing requested to withdraw her application as her problem in Vietnam has been resolved that it is now safe for her to return to Vietnam.

19.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 13^th day of May 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 13 May 2025 Tran Thi Hien Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13 May 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18153/21/6/131/V2897 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 374/21 (Formerly RBCZ 10358/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)