Vo Thi Hai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
HCAL 640/2022 [2026] HKCFI 4565 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 640 of 2022 BETWEEN
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 21 July 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 9 March 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing her application for non-refoulement protection (the “Notice”). 2.The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered that the application be justly determined on paper without an oral hearing. Background 3.The Applicant is a Vietnamese national, now aged 37. She was arrested by the police on 21 August 2020 claiming to have sneaked into Hong Kong from Mainland China on 28 November 2019. She lodged a non-refoulement claim by written signification dated 4 September 2020. In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision. The Applicant’s case and Board’s Decision 4.The Applicant’s personal background, 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[5] for reference. In gist, she claims, if returned to Vietnam, she will be harmed or killed by a loan shark for being unable to repay her debt owing to the loan shark and will die of cancer due to lack of adequate treatment. 5.Her case is that in September 2018 she and her husband borrowed a loan of 500 million Vietnamese Dongs at a monthly interest of 15 million Dongs from a loan shark with triad connection to set up their pig and chicken farm. The principal was due in September 2019. All went well until March 2019 when some pigs and chicken died of swine fever. Their business closed down in April 2019. In May 2019, the loan shark and 10 of his subordinates armed with swords, knives, iron rods and wooden sticks, came to her mother’s home to demand payment of overdue interest. As the Applicant and her husband were unable to pay, the loan shark and his subordinates assaulted them, damaged their furniture and threatened to kill them as they were leaving. The Applicant and her husband treated their injuries at home as they have no money for medical treatment. They reported the attack to the police, but the police took no follow up action. 6.A week later, the loan shark and his subordinates came to demand payment. Again, the Applicant and her husband were unable to pay. They were assaulted and fled from home in different directions. The Applicant fled to a neighbour’s home, self treated her injuries and then fled to Thien Loc where she stayed with her paternal aunt. She did not know what happened to her husband. In November, the Applicant was informed by her mother that the loan shark had told her mother that he had found out where the Applicant was “and would go and hunt her down”. 7.Out of fear, the Applicant fled to Hong Kong on 28 November 2019. She surrendered to the police on 21 August 2020 and was referred to the Immigration Department. She was subsequently released on recognizance. On 9 October 2020, she ran into her husband by chance when she visited the home of another Vietnamese. Her husband had also lodged a non-refoulement claim separately from hers. She knew one of her husband’s reasons for coming to Hong Kong was to look for her. The finding of the Board 8.The Board was satisfied that the Applicant had provided everything she wished to present in her non-refoulement claim form, screening interview and the Notice of Appeal. It was satisfied that she had indicated that she did not have any further information to provide. Hence, pursuant to section 12 of Schedule 1A of the Immigration Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, the Board considered it fair and appropriate to determine the appeal without holding a hearing. The Applicant has not raised any issue that her appeal before the Board was determined without an oral hearing. Indeed, she also did not request an oral hearing in respect of her leave application. 9.The Board basically accepted the Applicant’s case as she asserted. It made some further finding of facts on the basis of her case and on the country of origin information (“COI”). On the basis of the Applicant’s evidence, it found the injuries she suffered were not severe because she did not find it necessary to seek medical treatment. In coming to that finding, it had considered the Applicant’s concern about cost of medical treatment and also availability of public medical facilities under the Vietnam’s health care system. It also considered the fact that the Applicant and her husband could flee away from the loan shark and his ten armed subordinates is indicative that her injuries were relatively minor and not life threatening. For the same reason, the Board found the loan shark and his subordinates had no motivation to inflict serious harm on the Applicant. It was not satisfied that the evidence established that the loan shark would seek to pursue her if she returns to Vietnam. 10.The Board accepted that the loan shark had relayed a message to the Applicant that he had found out her whereabouts, but was not satisfied it established that he actually knew the Applicant’s location. This is because, if he knew, he would not have warned the Applicant’s mother but would have gone straight to the Applicant’s aunt’s home to look for her. The Board found the loan shark just wanted to scare the Applicant but had neither the means nor the motivation to pursue her. On the basis of the COI, it was also satisfied that the Applicant could relocate to other areas in Vietnam such as Hanoi and Ho Chi Minh City to avoid the risk of harm from the loan shark and it would not be unduly harsh for her to so relocate. The Board had not lost sight of the Applicant’s cancer diagnosis, but found her problem does not fall within the Persecution Risk ground or indeed any other ground at all. 11.Applying the law applicable to the non-refoulement protection under the USM to the Applicant’s claim as she asserted and to the further facts it found, the Board came to the conclusion that the Applicant had failed to establish her entitlement to protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice. 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[6]. Grounds for judicial review 13.The Applicant had not advanced any grounds of application in her Form 86. In her supporting affirmation, she reiterated that her life would be in danger because the loan shark and his subordinates intend to and could inflict serious harm on her. This is in effect a direct challenge of the Board’s finding of fact, which is impermissible. In the absence of particularised grounds of application, the Court in an application for judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision. Overall scrutiny 14.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; correctly identified the issues and observed a very high standard of fairness. 15.The Board basically accepted her evidence and made certain finding of facts based on her case, the COI and inherent probability. The Applicant could have no complaint against the Board’s finding of facts. The Board’s findings are mixed finding of law and of fact. Insofar as its finding of law is concerned, the Board is absolutely correct. Insofar as its finding of fact is concerned, it is exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Board gave reasons for its finding. On the evidence, it was open to the Board to make the finding of fact as it did. 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 had failed to discharge her burden of proving her fears and risks. The proposed judicial review has no realistic prospect of success. Conclusion 16.For the above reasons, the Applicant’s leave application is refused. Dated the 13th day of August 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 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000640_2022_files/the_Board's_Decision.pdf [6] [2018] HKCA 524 at [14(1)] |
Cases cited in this judgment