Dinh Thi Thuy Hoa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 559/2022

[2026] HKCFI 1751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 559 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

Order by Deputy High Court Judge To:

 Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 30 June 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 19 April 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 March 2021 (the “Notice”) refusing her application for non-refoulement protection.

2.The Applicant had requested an oral hearing.  A hearing on 4 March 2026 was scheduled and notice of hearing were sent to her by post on 12 February 2026 to her address as stated in her Form 86 and to her last known address discovered from the Immigration Department on 6 February 2026.  Neither of the notices has been returned in the course of mail.  The Applicant had never informed the court of any change of address since filing her Form 86.  There is nothing to suggest that she had not received the notice of hearing.  Attempts were made on the afternoon of 3 March 2026 to contact her by telephone through the two telephone numbers provided by the Immigration Department to remind her of the hearing, but the calls were not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to her notice.  She did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.The Applicant is a Vietnamese national, aged 41.  She had previously come to Hong Kong in September 2016 and August 2017 illegally. She was repatriated on both occasions.  She was last arrested by the police on 27 May 2020 for having entered Hong Kong illegally.  This time, she raised a non-refoulement claim by written signification which she later withdrew and then re-opened.  Her claim was rejected by the Director’s decision in the Notice.  Her appeal against the Director’s decision was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of the Board’s Decision. 

4.Her personal background, the factual background leading to the present application, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, she claims she will be harmed or killed by a moneylender for being unable to repay her debt owing to the moneylender.

5.In her non-refoulement claim form (“NCF”), the Applicant claimed that she operated a business selling gasoline in 2003.  In around January 2016, she borrowed around one billion Vietnamese Dong (“VND”) from the moneylender for a term of six months at a monthly interest rate of VND 30 million with her house as collateral.  The loan was borrowed to enable her to buy more gasoline.  However, her customer failed to pay her and she became unable to pay the monthly interest to her moneylender since April 2016.  The moneylender gave her extension of time to pay but threatened to take her house and to kill her if she failed to pay.  The Applicant could not pay in May 2016.  She was attacked by the moneylender’s men with wooden stick.  The moneylender gave her another month’s time to pay with a warning that if she did not pay “she would know what would happen by then.”  The Applicant suffered serious fractures and had a surgery.  She was hospitalized for about a month.  In June 2016, soon after her discharge from hospital, the moneylender demanded payment of all outstanding interest from the Applicant.  Again, he gave the Applicant extension of time to pay until September 2016 with a threat that he would not spare her if she could not pay.  On 2 September 2016, the Applicant fled to Hong Kong.  She was arrested on 14 September 2016.  For fear that she would be detained forever, she told the immigration officer that her problem in Vietnam had been solved.  She was then repatriated.

6.The Applicant did not return home upon repatriation, but hid in various places.  She sneaked into Hong Kong for the second time in August 2017.  She was arrested on around 27 November 2017 and repatriated back to Vietnam on around 13 March 2018.  She did not return home but hid in the homes of her other friends until around 20 May 2020 when she sneaked into Hong Kong again for the last time.  This time, she lodged a refoulement claim. She withdrew her claim and reactivated it.  But she did not attend the oral hearing scheduled for her on 20 January 2022.  On the same day, the Board issued a letter to her requesting for a written explanation for her absence at the hearing within seven days.  The Applicant did not respond.  The letter was not returned through the mail.  More than a month later, the Board received a letter from the Applicant dated 28 February 2022 informing the Board of her change of address.  Again, the Board issued her another letter on 22 March 2022 giving her another seven days to explain her absence.  The Applicant never responded.  The Board then made the Decision on the basis of the evidence then available and dismissed her appeal.        

The finding of the Board

7.The Board assessed the Applicant’s claim on the basis of the factual case as she asserted, but found on the evidence available that the intensity of harm suffered by the Applicant was low; that the moneylender had ample opportunity to seriously harm or kill her, but he never did; that the moneylender had no intention to seriously harm or kill the Applicant; that the Applicant could mitigate or avoid the risk of harm by seeking state protection and through internal relocation; that there was no genuine and substantial risk the she would be killed or harmed by her moneylender and his men; and that the risk of her being harmed is remote and not foreseeable and real. 

8.Applying the law applicable to non-refoulement protection to the Applicant’s case and its additional finding of fact, the Board found the Applicant had failed to discharge the burden of proving her entitlement to protection under any of the applicable grounds.  Hence, it dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

9.The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2].

Grounds for judicial review

10.The Applicant advanced three grounds of application in her Form 86.  The Court has repeatedly seen such grounds of application among leave applications filed by Vietnamese claimants.  They are lacking in particulars.  It appears that these grounds are formatted grounds adopted by claimants which may have no bearing to their case.  One of the grounds is specifically directed at the Director.  As the Director’s decision in the Notice had been superseded by the Board’s Decision, it is no longer susceptible to judicial review: Re Moshsin Ali [3]. For the Applicant’s benefit, it is assumed that this ground is also directed at the Board.

11.In her first ground, the Applicant argued that if returned to Vietnam, her life will be seriously threatened.  She will be tortured, beaten or even killed because the gangsters in Vietnam are cruel and violent.  The gangsters disregarded the law and were willing to kill to satisfy their anger and ferocity.  On the Board’s finding, her life would not be at risk of any of the proscribed harm, if returned to Vietnam.  This is a direct challenge of the Board’s finding of fact, which is impermissible. 

12.Second, the Applicant disagreed with the Director’s suggestion that she could relocate to live in other location to avoid the gangsters because of her health, personality and the disadvantage she would suffer in the labour market.  Her personal issues had not been advanced before the Board or mentioned in her non-refoulement claim form.  Having found she had failed to substantiate her claim for protection on any of the applicable grounds, the Board’s finding on internal relocation is unnecessary for its decision.  The finding is obviously for completeness and unnecessary.  This ground is irrelevant.

13.Lastly, the Applicant claimed that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is possible for the moneylender and gangsters to find her and harm her.  This argument is also related to feasibility of internal relocation.  It is not supported by any evidence.  For reasons as explained above, internal relocation is a non-issue.  This ground is irrelevant.

14.There is no substance in any of the grounds advanced.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

15.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the Unified Screening Mechanism (“USM”); the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  

16.The Applicant bears the burden of proving her entitlement to protection.  She did not attend the oral hearing and offered no explanation for her absence.  Nevertheless, the Board assessed her claim on the basis of the case as she asserted.  Of course, she did not have the benefit of the Board’s joint endeavor in establishing the facts in support of her claim, but that was the consequence of her deliberate choice.  On the evidence it was open to the Board to make the finding as it did.  Then, applying the law applicable to non-refoulement protection under the USM to the Applicant’s case as she asserted and its further finding of fact, the Board came to the conclusion the Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

17.For the above reasons, the Applicant’s leave application is refused.

Dated the 27^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