Case Document

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HCAL 163/2023

[2026] HKCFI 4618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 163 OF 2023

BETWEEN

	Pham Thi Thanh Thuy	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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;

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 45-year-old national of Vietnam who had previously illegally entered Hong Kong in 2011 and 2014 and was repatriated on both occasions after her arrest by the police again sneaked into Hong Kong on 2 May 2020, and was arrested more than 1 year later on 11 July 2021, and 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 creditor for failing to repay her debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Trai Chuoi, Hong Bang, Hai Phong, Vietnam. After leaving school she worked as a vegetable hawker to make her living, and later married her husband and made their home in her home district.

3.In 2009 she started her own pawn shop business, and for its expansion she borrowed a loan from a local money-lender to be repaid within 2 months and with monthly interests payments which she initially managed to make from her business income.

4.However, her business did not fare well, and when she was unable to repay her loan when it was due, her creditor then sent men to threaten her, and so she fled from her home district to take shelter in her mother’s place in another town, and in December 2011 she departed Vietnam for Hong Kong via China, but was shortly arrested by police, and in February 2012 she was repatriated to Vietnam.

5.Upon returning to her home district, as she was still fearful of her creditor and therefore hid in a friend’s place in Hai Phong, but later when she was told by her mother that her creditor had found out about her return to Vietnam and had therefore sent men everywhere looking for her, the Applicant therefore in April 2014 again departed Vietnam for Hong Kong via China, and upon her subsequent arrest by the police she then raised her first non-refoulement claim for protection, but during her screening process before an immigration officer in July 2016, she requested to withdraw her claim as she had been informed by her family in Vietnam that they had made part-payments of her loan for her and that her creditor had agreed to give her more time to repay the balance, and so her claim was treated as withdrawn and that she was repatriated to Vietnam in July 2018.

6.However, shortly after returning to her home district, her creditor and followers came to demand the Applicant to immediately paid up the remaining balance of her loan plus accumulated interests, and when she was unable to do so, they then beat her violently until restrained by her neighbours, and before they left they warned the Applicant that next time they would kill her if she still failed to repay her debts.

7.As a result, the Applicant became fearful for her life and fled from her home to hide in a relative’s place in Hai Phong, but when she was later told by her mother that her creditor and his followers had kept looking for her everywhere, the Applicant decided it was not safe to remain in Vietnam, and so on 1 May 2020 she departed Vietnam again for Hong Kong via China, and upon her subsequent arrest by the police and was referred to the Immigration Department, she again raised her non-refoulement claim for protection, and for which she completed her Non-refoulement Claim Form (“NCF”) on 1 September 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 16 November 2021, 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”).

9.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 creditor 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 creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor 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 100 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 or Hanoi where it would be difficult if not impossible for her creditor to locate her.

10.On 30 November 2021, 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 12 August 2022 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made on her behalf by her lawyer. On 13 January 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision[1], the Board accepted the Applicant’s claim of threats from her creditor over her unpaid debts but found no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam to negate such risk of harm from her creditor that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

12.On 6 February 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from the killings that she may face if deported back to her home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing her claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required her to respond to questions that she was not in a position to offer any response;

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

13.These are however all just some bare and bald assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, nor was she able to do so at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.

14.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.

15.In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim as well as relevant COI as to the availability of state protection to her upon her return to Vietnam to negate her claimed risk from her creditor, and in the absence of any error of law 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 to challenge such findings of the Board.

16.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.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.

18.In the premises, as I am for the given reasons 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 18^th day of August 2026

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 18 August 2026 Pham Thi Thanh Thuy Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18 August 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 19348 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1514/21 (formerly RBCZ 5000011/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)