Nguyen Thi Thuy Hau v Torture Claims Appeal Board/

HCAL 753/2022

[2026] HKCFI 4137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 753 of 2022

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 the oral submissions of the Applicant in open court.

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicants’ application by Form 86 filed on 11 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 4 August 2022 (the “Decision”) dismissing her appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 July 2018 (the “Notice”) refusing her application for non‑refoulement protection.

The Applicant’s claim

2.The Applicant is a Vietnamese national, now aged 47. She had received 16 years’ formal education and graduated from a university. She had 13 years’ working experience. She had been arrested by the police on 26 November 2013 and repatriated back to Vietnam on 3 December 2013. She turned up in Hong Kong and surrendered to the Immigration Department on 15 July 2015 claiming to have sneaked into Hong Kong on the same day. On the same occasion, she lodged a claim for non‑refoulement protection by written signification. Three months later, on 27 October 2017 she was arrested for using a forged identity card and for other immigration offences. She was sentenced to 15 months’ imprisonment. Again, she raised a non-refoulement claim by written signification on 24 April 2018. Her claim was rejected by the Director on 20 July 2018. She was then repatriated to Vietnam in August 2018 without her appeal being heard.

3.The Applicant’s 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. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, she claims, if returned to Vietnam, she will be harmed or killed by a moneylender for being unable to repay a loan of 500 million Vietnamese Dongs which she and her brother had borrowed from the moneylender. She claimed that towards the end of June 2014, the moneylender and his underlings had been threatening her and her brother with death and that eventually her brother was killed in a hit and run traffic accident on 2 August 2014 which the Applicant believed was orchestrated by the moneylender. In October 2014, she received a call from the moneylender threatening that she and her family members would end up like her brother if she did not repay the debt. Then, she fled to Mong Cai where she stayed with a friend for about a year and then sneaked into Hong Kong in July 2015.

4.While in Hong Kong, the Applicant was attacked by an assailant from Vietnam on three occasions in May, June and July 2017 claiming to have been sent by the moneylender. On the first attack, the assailant broke into her home on an afternoon, accused her of not repaying the debt and assaulted her. The assailant left when her neighbour returned. On the second attack, the assailant assaulted her as she was entering her home, but left when she shouted for help. On the third attack, the assailant met her on the street, dragged her back to her home and assaulted her until he fainted. The Applicant reported the attacks to Sham Shui Po Police Station. According to the Applicant, the assailant was arrested and sentenced to 18 months’ imprisonment in September 2017. Her claim was rejected by the Director’s Notice dated 20 July 2018.

5.The Applicant appealed. Her appeal was heard before the Board on 9 June 2022, four years later. She claimed that upon her repatriation to Hanoi, she dared not return home because the interest arising from her outstanding debt had been escalating. She went to stay in her friend’s home in Mong Cai. She was informed by her daughter that the moneylender had been looking for her in her parents’ home and demanding her parents to sell their house to pay her debt and demanding for the Applicant’s whereabouts. Feeling unsafe, the Applicant sneaked into Hong Kong again on 29 July 2020. She was again arrested by the police on 9 August 2020 and prosecuted for entering Hong Kong illegally.

The Board’s finding

6.The Board found the Applicant incredible. It rejected her evidence that her brother’s traffic accident was orchestrated by the moneylender and her evidence about the three attacks as incredible. It found her evidence unreliable and that she had failed to establish her risk of harm. This is the primary basis of the Board’s Decision.

7.However, it went on to consider the Applicant’s claim on the alternative basis that her account was true. It found the ill-treatment or injuries she suffered did not attain the minimum level of severity or the requisite level to amount to “torture” under section 37U(1) of the Immigration Ordinance or persecution. It found no evidence that the ill-treatment was inflicted by any public official or person acting in an official capacity or with the consent or acquiescence of a public official or other person acting in an official capacity. It found the assailant had no intention to seriously harm the Applicant as he was not armed during the first two attacks and he did not seriously hurt her with the knife which he carried on the third attack. It found the ill-treatment did not arise on account of any of the reasons enumerated in Article 1A(2) of the 1951 Convention relating to the status of refugees and its 1967 Protocol (“Convention reasons”). It found that the moneylender’s interest was recovery of the loan and had no intention to kill her. On the basis of independent and credible country of origin information (“COI”), it found, given her age, education and experience, it would not be unduly harsh for the Applicant to relocate to Ho Chi Minh City or Da Nang to avoid the moneylender. It concluded that the Applicant had failed to show she had genuine and/or substantial risk of harm if refouled to Vietnam in the foreseeable future. Applying the law applicable to non-refoulement protection to the Applicant’s case as she asserted and the Board’s further finding, 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 found in the further and alternative that even if the Applicant’s claim were genuine, she is not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”).

8.Hence, for these reasons, it dismissed her appeal against the Director’s Notice.

The Court’s observation on the Board’s Decision

9.The Board rejected the Applicant’s claim that her brother’s traffic accident was orchestrated by the moneylender for two reasons. First, it rejected the Applicant’s evidence that “according to her friends and relatives, the passers-by had provided ample evidence to the police about the accident. The Applicant’s evidence is purely hearsay on which no weight could be attached. More importantly, obviously the Board did not even know what the hearsay evidence was and why the evidence has no probative value on the issue that the moneylender was the person behind the accident. Second, the Board considered the accident was not pre-meditated as it took place 20 minutes after the Applicant’s brother had started his fatal journey. With respect, the Board did not even know how and the circumstances under which the accident occurred to enable it to draw the inference which it did. It is also significant that the Board had not considered the Applicant’s evidence that the moneylender had prefaced his threat to the Applicant by quoting the traffic accident and had not the totality of the evidence.

10.Second, the Board rejected the Applicant’s evidence about the three attacks by quoting inconsistencies in her evidence. With respect to the Board, the inconsistencies are just fine points in the evidence. However incredible the Board found the Applicant’s case was, on a broad view of the evidence, the attacks were supported by medical evidence from the hospital, the Applicant’s reporting to Sham Shui Po Police Station and the conviction of the assailant. None of these evidence was ever challenged by the Board. The Board has a duty of joint endeavour to help the claimant to make out her case. If it has doubts about the veracity of these evidence and does not wish to accept them, it has the duty to make enquiries. It would not be difficult to cause the immigration officer to seek confirmation from the hospital and the police station.  The Applicant’s inconsistencies is insignificant compared with these unchallenged evidence.  

11.In the Court’s view, it is at least arguable that the Board erred in law in failing to discharge its duty of joint endeavour and in failing to apply the low standard of proof appropriate to non-refoulement claims, and that the Board’s finding is irrational. Thus, arguably, the primary basis of the Board’s Decision is reviewable. The rest of this Form CALL-1 deals with the alternative basis of its Decision. If the alternative basis of the Decision is also reviewable, leave to apply for judicial review shall be granted. If not, the Applicant nevertheless fails.

Legal principles applicable to judicial review

12.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[2].

Grounds for judicial review

13.At the hearing, after the legal principles applicable to judicial review had been explained to the Applicant, she confirmed that she had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements. She asked for time to enable her to repay her debt so that she could safely return to Vietnam. However, she had advanced the following four grounds in her supporting affirmation.

14.First, the Applicant submits that if returned to Vietnam, her life will be seriously threatened. She will be tortured, beaten or even killed because the moneylender and his underlings in Vietnam are cruel and violent. They disregard the law and are willing to kill to satisfy their anger and ferocity. The Board had noted and considered the Applicant’s fear in this regard in paragraphs 70 to 74 of its Decision. Essentially, it found in view of the geographical size of and population size in Vietnam the risk she would be located by the moneylender in big cities like Ho Chi Minh and Da Nang would be low. These are finding of facts by the Board on the basis of authoritative and credible COI. This ground is therefore a direct challenge of the Board’s finding of fact which is impermissible, save for errors of law, procedural unfairness and irrationality in the Decision.

15.Second, the Applicant disagrees with the Director’s suggestion that she could relocate to live in other locations to avoid the moneylender. For her benefit, the Court assumes that this complaint is directed at the Board. She submits internal relocation is not feasible because she could not find employment in the new location by reason of her health, personality and the disadvantage she would suffer in the labour market. These issues had not been raised by the Applicant in her NCF or testimony and she had not submitted any such evidence of ill-health, personality and her lack of competitiveness.

16.Third, the Applicant claims 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 her underlings to find her out and harm him. This is just an assertion based on the Applicant’s own speculation without any supporting evidence.

17.Lastly, she argues that the Board’s Decision is clearly unsafe and wrong. It is accepted that it is at least arguable that the primary basis of the Board’s Decision is reviewable. The focus is now on the propriety of the alternative basis of the Decision. There is nothing to suggest that the Board erred in its finding under alternative basis of its decision.

18.In conclusion, there is no substance in any of the grounds advanced as regards the alternative basis of the Board’s Decision. In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

19.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 USM; the burden of proof and standard of proof and correctly identified the issues. The Court has found some problems in the primary basis of the Board’s Decision. In the alternative basis of its Decision, the Board assessed the Applicant’s claim on the basis of the case as she asserted. It made some further finding of facts based on the evidence based on the Applicant’s account, such as that the ill-treatment and injuries she suffered did not attain the minimum level of severity, that the moneylender had no intention to kill her, that the government or its officials were not involved in inflicting the ill‑treatment and injuries on her and that the ill-treatment she suffered were not on account of a Convention reason; and on the basis of the COI that it would not be unduly harsh for the Applicant to relocate. Then, applying the law applicable to non‑refoulement protection to the Applicant’s case and the further finding of fact, it found the Applicant had failed to establish the factual basis to support her claim to protection under any of the applicable grounds under the USM. These are mixed finding 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 alternative basis of the Board’s 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. Despite the blemishes in the primary basis of the Board’s Decision, the proposed judicial review has no realistic prospect of success.

Conclusion

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

Dated the 23^rd day of July 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