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

HCAL 370/2024

[2025] HKCFI 4104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 370 of 2024

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 January 2024 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing.  She appeared before the Court on 18 August 2025.

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.

4.Although the Board’s Decision was in Chinese, since the applicant had submitted her grounds in support of her application in English, I decide to prepare this Form CALL-1 in English.

The applicant

5.The applicant is a national of Vietnam.  She was arrested by police on 25 March 2018 as an illegal immigrant.  Police referred her to the Immigration Department where she lodged a non-refoulement claim. 

6.The applicant’s claim is based on her fear of being harmed or killed by a creditor as she failed to repay her debt.

7.According to the applicant, she had borrowed 300 million Vietnamese currency from her creditor for her business, which failed.  She was unable to repay her debt.  The creditor and his subordinates had demanded repayment.  When she was unable to repay, they assaulted her with wood plank and knife.  She had to leave Vietnam for her safety.

8.Details of her claim are set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000370_2024_files/the_Board's_Decision.pdf.

The Director’s Decision

9.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”).

10.By way of Notice of Decision dated 24 February 2021 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 7 July 2023, the Board conducted an oral hearing for her.  She had given oral evidence and answered the Board’s questions.

12.Having considered the evidence, the Board found that her evidence was contradictory.  It did not accept her evidence on the facts of her claim.  It further found that even if her evidence were accepted, it would still dismiss her appeal because internal relocation would be viable. [39]-[47]

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

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

14.The applicant has filed Form 86 dated 26 February 2024 for leave to apply for judicial review of the Board’s Decision.

15.The applicant has, insofar as the Board is concerned, raised the grounds below in support of her application.

(1)  The Board’s Decision is wrong because it is unreasonable or fair as required by the Wednesbury test.

(2)  The Board had placed too much weight on the country of origin information without taking into consideration of her personal background.  It had also required her to respond to questions that she was not in a position to offer her response.

(3)  The Board had rejected her evidence whereas it should have admitted her evidence instead.

DISCUSSION

16.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).

17.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, when asked if she considered the Board was wrong, she said that the Board was not wrong.  This is inconsistent with her reasons under paragraph 15.  Those grounds have become insignificant.  They are, nevertheless, her bare assertions without any evidence in support, which the Court of Appeal had held to be not valid to challenge the Board’s Decision.[1]

18.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.”

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

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

DISPOSITION

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

22.Since the above decisions have been made, the Court received a letter from The Director that the applicant applied for withdrawal of the application.  As her application is dismissed, it is not necessary to deal with her withdrawal application.

Dated the 23^rd day of September 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