Nguyen Thi Yen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 831/2022 [2026] HKCFI 4966 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 831/2022 BETWEEN
Following:
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 25 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 18 August 2022 (the “Decision”) dismissing her appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 November 2021 (the “Notice”) refusing her application for non‑refoulement protection. The Applicant’s claim 2.The Applicant is a Vietnamese national, now aged 41. She entered Hong Kong illegally on 3 January 2021. She surrendered to the Immigration Department on 24 January 2021 and lodged a non-refoulement claim by written signification dated 19 February 2021 (the previous claim). Her previous claim under Torture Risk[1]; BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4] grounds was rejected by the Director’s 2021 Notice. Her appeal against the 2021 Notice was dismissed by the 2022 Board’s Decision. Her personal background, the factual background leading to the present application, the basis of her claim and 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 she will be harmed or killed by a moneylender with triad background for being unable to repay her loan borrowed from him. 3.The Applicant’s case as stated in her non-refoulement claim form (“NCF”) is that her parents-in-law gave her and her husband a plot of land of 400 square metres on which she and her husband built their house. Her husband had left home to work in Hanoi. In 2015, she wanted to use the rest of the land to operate a farm raising chickens and pigs. She borrowed 400 million Vietnamese Dongs at a monthly interest of 20 million Dongs from the moneylender. 4.She was able to pay interest until November 2017 when all of her pigs died of swine flu and her chickens were gradually dying. Nevertheless, the moneylender gave her indulgence by reducing the monthly interest by 50% to 10 million Dongs. The Applicant then grew vegetables on the land to make interest payments. In August or September 2019, she became unable to pay. The moneylender came to her home with two associates and demanded to seize her land to set off the loan. Upon the Applicant’s pleading, he gave her more time to pay and left. Thereafter the moneylender called her once every week to demand payment and threatened to kill her if she did not pay. However, he took no steps to execute the threat. 5.One day in October 2020, a year later, the moneylender called the Applicant to demand payment. The Applicant replied that she could not pay. Then the moneylender and two of his associates came. They beat her back with wooden poles for a few minutes and threatened to kill her if she did not pay (the “first attack”). Out of fear for the safety of her children, the Applicant left them to the care of her parents. She returned to her own home. 6.One day in November 2020, the moneylender and three associates came to her home unannounced. Without saying a word, the associates hit her right leg several times (the “second attack”). The Applicant fled. The moneylender and his associates did not chase after her. The Applicant ran to her parents’ home a few minutes away. She lived with her parents until January 2021 when she went to China. 7.In February 2021, while in Hong Kong, the Applicant learned from her parents that the moneylender and two associates had been to her parents’ home to ask for her whereabouts. Her mother told the moneylender that the Applicant had left for Hong Kong. The moneylender told her mother to relay to the Applicant that she should return to Vietnam to repay the debt and threatened to kill her if she did not pay after her return. The Board’s finding 8.The Board analysed the Applicant’s evidence very critically and found a number of inconsistencies and implausibility in her evidence. It basically found her case incapable of belief. Hereunder are the inconsistencies and implausibility. 9.The Applicant’s evidence was that after the first attack she left her children to the care of her parents, but she returned to live in her own home. Her explanation was that she had kept her daily necessities in her home. The Board found it unreasonable and incapable of belief that the Applicant did not also live with her parents but chose to stay in her own home. 10.Since the moneylender’s associates assaulted the Applicant upon seeing her without saying a word, the Board drew the inference that before going to the Applicant’s home the moneylender had decided to punish her for not paying. The Board therefore considered the associates would not have allowed the Applicant to flee and it was also incapable of belief that she could have fled from four armed men who were determined to punish her. It did not believe the moneylender and his associates did not chase after her. All the more, it could not accept the associates could not catch her up as she had been beaten on the leg several times. It also found the Applicant’s evidence in her non-refoulement claim form and testimony before the Board inconsistent as to whether she knew the moneylender’s associates did not chase after her, or that she did not know if they did chase after her because she did not turn around to look or that she did not notice; and as to whether her mother told the moneylender’s associates that she had left for Hong Kong or had gone overseas. 11.Having regard to the fact that the moneylender lived only a few minutes by car from the Applicant’s home and that between August or September 2019 and October 2020 had called the Applicant weekly to chase for interest payments, the Board found the moneylender took debt collection seriously. It therefore found it incapable of belief that the moneylender did not visit the Applicant’s parents’ home until February 2021 two months after the Applicant had fled her home after the second attack. 12.For all these reasons, the Board found the Applicant incredible and rejected her evidence in its entirety as unreliable. As the Applicant’s claimed fear of harm was founded on unreliable evidence and information, the Board came to the conclusion that she had failed to establish the factual basis to support her claim for non-refoulement protection. That is the primary basis of the Board’s Decision. 13.Nevertheless, the Board went on to assess the Applicant’s claim on the basis of the case as she asserted. It found even if the basic facts of her claim is accepted, the Applicant would still fail to establish the factual basis to support her claim for protection. In essence, it found the moneylender had no intention to seriously harm or kill the Applicant. 14.From August or September 2019 to October 2020, the Applicant never paid, not even the reduced monthly interest. Despite the moneylender called her every week and renewed his death threat, for a year the moneylender never executed the threats and the Applicant was never harmed. The Board therefore found the moneylender had no intention to kill her. 15.It is the Applicant’s own evidence that it was the moneylender who told his associates to stop beating her during the first attack. The Board took that as evidence that the moneylender had no intention to seriously harm or kill the Applicant. 16.During the second attack, the associates only hit the Applicant on her leg a few times upon seeing her. As the leg is not a vulnerable part of the body, the Board inferred that the moneylender did not want to cause her serious injury. It further held that since she had been hit the Applicant could not have run fast. The associates would have no difficulties to catch her but they did not chase or catch her. The Board therefore drew the inference that the moneylender had no intention to cause her further injuries or serious harm or to kill her. 17.From the fact that the moneylender did not visit the Applicant’s parents until two months after the second attack, the Board drew the inference that he had no intention to kill her or cause her serious injuries. It also drew the further inference from the fact that thereafter the moneylender never visited her parents that he no longer had any intention to harm or kill the Applicant and the Applicant’s risk of harm upon her return to Vietnam is low, ie the debt collection actions had been concluded and the outstanding debt written off. 18.The Board also found, given her age, background and working experience, it would not be unduly harsh for the Applicant to relocate to Hanoi or Da Nang to avoid the risk of harm, if such harm should turn real. 19.For these reasons, the Board found in the further and alternative that even on the basis of the Applicant’s evidence, she had failed to establish the factual basis to support her claim for protection under of the applicable grounds under the Unified Screening Mechanism (the “USM”). Overall scrutiny 20.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board correctly identified the issues; correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; and the burden of proof. However, this Court is troubled by the Board’s approach in its assessment of credibility of the Applicant’s evidence when making its primary decision which arguably may have resulted in its finding the Applicant incredible, rejecting her evidence in its entirety and hence reaching its conclusion that she had failed to establish the factual basis to support her claim. Arguably, the Board had applied the usual standard of proof and not the low standard; had tested the Applicant’s evidence against its subjective standard and not the reasonable man’s standard. 21.This Court accepts the Board’s finding that the Applicant’s reason for staying in her own home after the first attack unconvincing. But that was just a difference between her subjective choice and the Board’s subjective thinking. Maybe there were other untold reasons which she failed to articulate at the hearing. But what impact could that have on the centrepiece of her case? 22.As for the Board’s criticism whether the Applicant knew while she was fleeing that the moneylender’s associates did not chase after her, or that she did not know if they did chase or that she did not notice, this is just fault finding and hair splitting. The Applicant’s evidence was that she was running for her life and she escaped. The indisputable evidence was that the moneylender’s associates did not catch her. The Applicant was in fear. The situation was confusing. All happened in a fleeting moment. What impact could such inconsistency even taken together with other inconsistencies under the circumstances have on the Applicant’s credibility as could justify throwing away her evidence altogether? Was the Board applying the usual standard of proof and not the low standard applicable to non-refoulement claims? Again, in emphasising the inconsistency of her evidence as to whether her mother told the moneylender’s associates that she had left for Hong Kong or gone overseas and rejecting her explanation she had forgotten about the matter due to lapse of time, the Board has arguably erred in turning the oral hearing which was intended to be a joint enquiry into a memory testing exercise. What impact would a lie of that nature has on her credibility? The effect of the two versions of her evidence is the same in that she was out of Vietnam, regardless of her final destination. 23.The Board made very adverse finding on the Applicant’s credibility based on her evidence about the second attack. Primarily for that finding, it rejected the entirety of her evidence. But in its alternative finding, on the assumption that what she told the Board is true, the Board found the moneylender had no intention to seriously harm or kill the Applicant. That finding actually explained the Applicant’s evidence. It explained why the moneylender told his associates to stop beating the Applicant during the first attack. It explained why during the second attack, the associates hit her leg only and not other vulnerable parts of her body, why they did not chase after her and did not catch her, and obviously, let her go. It explained why the moneylender visited the Applicant’s parents’ home two months later and gave a warning. It is also the Board’s view that that warning was nominal to wind up the matter for the moneylender never visited again. That was why the Board found the moneylender no longer had intention to pursue the Applicant. The Board’s alternative finding explained all the inconsistencies and implausibility the Board had in its primary decision. The Board’s alternative finding clearly tells that its primary finding is wrong. Even assuming the Board had correctly inferred that the moneylender wanted to punish the Applicant, it inadvertently assumed that the punishment must go beyond hitting her on the leg, but to cause her really serious harm which on a proper analysis is not justified by the evidence. This Court has no quarrel with the Board’s alternative finding. It applied the low standard of proof. It is in line with the Court of Appeal’s decision in Hidayah[6] that although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess her claim against all applicable grounds on the basis that her case is plausible. This Court prefers the Board’s alternative decision. 24.For the above reasons, this Court does not intend to explore further with the Board’s primary finding. It is not necessary in view of its alternative finding. Insofar as its finding of law under the alternative decision is concerned, the Board is absolutely correct. Insofar as its finding of fact in the alternative decision 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 under its alternative decision. The Court could detect no error of law or procedural unfairness in the Board’s alternative decision. The alternative 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 25.For the above reasons, the Applicant’s leave application is refused. Dated the 31st 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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [3] 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”) [4] 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 [5] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000831_2022_files/the_Board's_Decision.pdf [6] CACV 160/2018, [2018] HKCA 595 unharmed |
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