Do Thi Ha v. Torture Claims Appeal Board

HCAL 2135/2020

[2026] HKCFI 1630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2135 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by Deputy High Court Judge Michael WONG:

1.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 27 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 October 2020 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002135_2020_files/the_Board's_Decision.pdf

2.The Board found that the applicant’ claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 January 2020, which rejected the applicant’s non-refoulement claim, and confirmed the same.

The applicant’s case

3.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

4.In sum, the applicant claimed for non-refoulement protection because she feared harm or being killed if she were to return to Vietnam.  She had been gang raped in Vietnam in November 2018 by 3 or 4 unknown men.  She wrote to the provincial police about the rape but she did not get any reply.  Afterwards, she was approached by unknown men on a few occasions who warned her to stop writing letters to the provincial police, and they threatened that they would kill her if they saw her again.

Disposal on paper

5.The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

6.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

7.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 27 October 2020.  She only stated in the affirmation that she did not agree with the Board’s Decision.

Discussion

8.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

9.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality.

10.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 5 June 2020.  The applicant was thus given the chance to present her case to the Board in person. 

11.As can be seen from the Board’s Decision, the Board did not challenge the credibility of the applicant and assessed her risk based on her claimed experiences in Vietnam.

12.The Board found that the treatment the applicant received was not inflicted by, or with the consent or acquiescence of a government official or other people acting in an official capacity.  The Board also found that the ill-treatment inflicted upon the applicant was not for any Convention reason.  This court finds no flaws in these findings.

13.However, in respect of the Board’s findings that the applicant failed to prove that there was severe pain or suffering that fell within the definition of “torture” inflicted upon her, and that the level of injuries suffered by the applicant was minimal, this court is of the view that such findings could be unreasonable and irrational.  

14.The applicant was only 22 years old when she was gang raped by 3 to 4 unknown men, resulting in injuries in her private part.  She also suffered from stress and anxiety induced by the gang rape and the subsequent frequent threats.  The applicant claimed that she was worried that people in the village would find out that she was being raped.  She was mentally tormented and was deeply ashamed of herself.  Such sufferings could hardly be said to be minimal and did not fall within the definition of torture, or cruel, inhuman or degrading treatment or punishment (“CIDTP”).

15.Nevertheless, in the assessment of a claim for non-refoulement protection, even when the treatments inflicted upon the non-refoulement claimant were accepted as within the definition of torture or CIDTP, the Board still has a duty to make findings regarding the availability of state protection and the viability of internal relocation for the claimant.

16.In this respect, the Board did consider extensive country of origin information (“COI”) and found that despite shortcomings and corruption of the Vietnamese police, steps had been taken by the Vietnamese government to improve the situation.  Moreover, the Board found from COI that there were NGOs on women’s rights protection.  Should the applicant seek assistance from them, she would have received certain degree of protection.  Although the provincial police did not reply to the applicant’s letters, there were avenues that the applicant could resort to and report abuse of power.  The Board was satisfied that the Vietnamese authorities would take measures to combat the problems.

17.The Board also assessed the viability of internal relocation for the applicant, taking into account the applicant’s assertion that the men who raped her were affiliated with triad members, and she had no means to start a new life or make a living in any other parts of Vietnam.

18.The Board found that internal relocation was permissible in Vietnam.  The applicant could not identify the rapists and there was no evidence to support her assertion that the rapists and the people who threatened her were affiliated with triad members and could locate her throughout such a large country and in cities with huge population.  The Board found that the applicant, being young with education background and work experience, could reasonably relocate to large cities such as Ho Chi Minh City and Hanoi where it would not be hard for her to secure a job, to sustain her living and to avoid the rapists.

19.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

20.Although this court is of the view that the Board’s findings regarding the applicant’s pain or suffering could be unreasonable and irrational as aforesaid, this court finds nothing wrong or unreasonable in the way the Board concluded that internal relocation was viable for the applicant.

21.In Tk v Michael C Jenkins, Esq & Director of Immigration, HCAL 126/2010, Lam J (as he then was) disagreed with the Board on the question of state acquiescence, but still upheld the Board’s decision on the ground of internal relocation.  On appeal, Lam J’s decision was upheld by the Court of Appeal[1]. Likewise, this court’s disagreement with the Board on the question of pain and suffering would not be a ground to upset the Board’s Decision when internal relocation is viable for the applicant.

22.Thus, there is no basis for interfering with the Board’s Decision even though there could be irrationality on the Board’s finding on the severity of harm that was inflicted upon the applicant.  The Board’s Decision on internal relocation could not be flawed. The Board’s Decision that the applicant was not entitled to non-refoulement protection should be upheld on the ground of internal relocation.

23.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

24.For reasons aforesaid, the Leave Application is dismissed.

Dated the 20^th day of March 2026

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