Nguyen Thi Huong v. Torture Claims Appeal Board

HCAL 821/2021

[2025] HKCFI 5812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 821 OF 2021

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:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of Vietnam who entered Hong Kong illegally on 2 May 2019 and was arrested by police on 7 May 2019. 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 Husband’s creditors over his outstanding debts.

2.The Applicant was born and raised in Thuan Thanh, Bac Ninh Province, Vietnam. After leaving school she worked in the factory, married her husband and raised a family with a daughter in her home district.

3.However, soon she discovered that her husband was in many debts due to his drugs addictions and gambling habit, and for which he was frequently threatened and beaten by his creditors over his unpaid debts, and after he was subsequently arrested by police for illegal gambling and was put in prison, his creditors then turned to threaten the Applicant to repay her husband’s debts, and when she was unable to do so, they then beat her and threatened to force her into prostitution. 

4.As a result, the Applicant became fearful for her safety, and so in April 2019 she fled from her home to Mong Cai, and on 30 April 2019 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 4 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 16 October 2019, 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”).

6.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 husband’s creditors 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 her husband’s creditors to seriously harm or kill her other than to press her to repay her husband’s debts, that in any event these were private monetary disputes between her husband and his creditors 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 97 million people spread across a vast territory of more than 330,000 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 Ho Chi Minh City where it would be difficult if not impossible for her husband’s creditors to locate her.

7.On 28 October 2019, 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 7 July 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 14 April 2021, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1], the Board accepted the Applicant’s claim of fear of harm from her husband’s creditors over his outstanding debts but found no reliable evidence of any real intention of her husband’s creditors to seriously harm or kill her other than to press her to repay his debts, and that in any event these were private monetary disputes between her husband and his creditors 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 husband’s creditors that her claim for non-refoulement protection failed on all applicable grounds.    

9.On 3 June 2021, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claim as before but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.

10.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.

11.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.                

12.In the premises, and 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.

13.For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 28^th day of November 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