Le Thi Thuy Hong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
HCAL 749/2022 [2026] HKCFI 5598 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CNSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 749 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 10 August 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 3 August 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 July 2021 refusing her application for non-refoulement protection. 2.The Applicant had requested an oral hearing. A hearing on 31 August 2026 was scheduled and notice of hearing was sent to her by post on 31 July 2026 to the two slightly different versions of her address as stated in her Form 86 and as discovered from the Immigration Department. Neither of the notice was returned in the course of mail. Attempts had been made on the afternoon of 28 August 2026 to contact her by telephone through the telephone number she provided to the Court and to the Immigration Department, but the calls were not answered. The Court was satisfied that the Notice of Hearing had been duly served on the Applicant that it had tried its best endeavour to bring the hearing to her notice. The Applicant 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 the leave application may be justly determined on paper without an oral hearing. 3.The Applicant is a Vietnamese national, now aged 51. She last arrived in Hong Kong on 4 December 2018 and overstayed since 12 December 2018. She was arrested by the police on 8 September 2020 and referred to the Immigration Department. On 11 September 2020, she lodged a claim for non-refoulement protection by written signification. Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s Notice. Her appeal against the Director’s 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 4.The factual background leading to the present application, the basis of the Applicant’s claim, the arguments he 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, the Applicant claims that, if returned to Vietnam, she will be harmed or killed by two loan sharks for being unable to repay the interest and loans she borrowed from them. 5.The Applicant’s case is as follows. She operated a provision shop in Ho Chi Minh City in 2006. In March 2015, her business began to run into deficits. She borrowed 1,000 million Vietnamese Dongs and 600 million Vietnamese Dongs with no fixed term from two loan sharks at a monthly interest of 7% of the loan capital. She suffered great loss in around 2017 and became unable to pay the monthly interest. The two moneylenders vandalized her shop and cut her forehead with a blade. They also threatened to kill her if she did not pay. She received six to eight stitches in the hospital and recovered in a month. She did not report the attack to the police. 6.The loan sharks also went to the school of her younger son and daughter. They slapped her children’s faces, harassed them and threatened them. In June 2018, the loan sharks assaulted the Applicant’s elder daughter and her son-in-law on the street and threatened to cut the muscle and hamstrings of the Applicant’s family members. This time, the Applicant made a report to the police. The police accepted her complaint but seemingly took no follow up action. 7.In July 2018, the Applicant sent her children and her mother to Lao Bao City in Quang Tri Province to avoid the loan sharks. She then moved to stay in various places in Vietnam and eventually flew to Hong Kong on 4 December 2018. The finding of the Board 8.The Applicant testified before the Board. The Board noted that the Applicant did not seek protection upon her arrival in Hong Kong but only did so after her arrest in September 2020. Her explanation was that she was fearful when she arrived in 2018 and then she felt fearful because of the social unrest in 2019. But she could not explain why she still felt fearful in 2020. The Board did not expressly draw any adverse inference from her failure to make a timely claim. In view of the high standard of fairness and low standard of proof required in this sort of proceedings, this Court assumed the Board did not take the Applicant’s failure as damaging her credibility. 9.The Board then went on to ask why the Applicant did not stay with her children in Lao Bao City where they had not been harassed by her loan sharks. The Applicant replied that her children had the protection of the neighbours there but Lao Bao City was too remote and it was hard to make money there. Again, the Board stayed shy of making any finding whether it accepted her explanation. 10.Then without giving any reason, the Board concluded immediately thereafter that on the totality of evidence, the Applicant’s intention to seek protection in Hong Kong is suspicious. Again, it stopped short of making a finding whether she was credible or incredible. But then it appears that despite such adverse observations, the Board assessed the Applicant’s claim on the basis of the case as she asserted. 11.The Board accepted that the loans were genuine but found the problems the Applicant faced is purely private matters relating to her dispute with the two loan sharks. It found on the basis of credible country of origin information (“COI”) that despite corruption and inefficiency in the police, the Vietnamese government has been doing much to combat corruption and improve professionalism in the police and has yielded positive results. It was satisfied that adequate state protection would be available to the Applicant on her return to Vietnam and there is no ground based on well-founded fear for not seeking protection. Hence, her claim under Torture Risk ground failed. 12.It found the Applicant has adduced no evidence to show that a sentence of death will be imposed on her if she is refouled to Vietnam and that she had failed to establish a personal and real risk of her absolute and non-derogable rights under BOR 2 being violated on her refoulement to Vietnam. 13.In respect of BOR 3 Risk ground, the Board found the physical injuries she suffered did not attain a minimum level of severity and she had not reported any mental injuries. As adequate state protection is available, it found she had failed to prove her entitlement under BOR 3 Risk ground. 14.As for Torture Risk ground, the Board correctly referred to section 37U of the Immigration and the requirement to prove severe pain and suffering, but seemed to have equated severe pain and suffering with injuries of a minimum level severity. It found the injuries suffered by the Applicant failed to attain a minimum level of severity, but made no finding if the injuries were accompanied by severe pain and suffering. While a minimum level of severity usually entails severe pain and suffering, it is not invariably so. Though it is possible to infer the presence or absence of severe pain and suffering from the injuries inflicted, it is not open to this Court to make such a finding as finding of fact is a matter solely for the Board. This Court could only find that the Board erred in law in applying the wrong test and made no finding whether the Applicant had proved severe pain and suffering. 15.However, the Board had found adequate state protection available, that it was the Applicant’s choice not to seek protection, and that there was no ground based on well-founded fear not to seek such protection. It therefore came to the conclusion that there is no foreseeable, real, personal and present risk of being tortured if the Applicant is refouled to Vietnam. By virtue of this finding, even if the Board were to find there were any risk, such risk could be neutralised or rendered unreal by state protection. Thus, the Board’s error has no effect or impact on its Decision. Legal principles applicable to judicial review 16.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 17.The Applicant advanced four grounds of application in her Form 86. First, she submits that if returned to Vietnam, her life will be seriously threatened. She will be tortured, beaten or even killed because the loan sharks in Vietnam are cruel and violent. They disregard the law and are willing to kill to satisfy their anger and ferocity. The Board had studied extensively into the COI concerning availability of state protection in Vietnam in paragraphs 42 to 80 of its Decision. In essence, it found the Vietnamese government has devoted much effort in combating corruption in the government and in the police and in improving professionalism of the police. It set up special police units to address and crack down illegal moneylending and debt collection activities. It is willing and able to offer effective protection to its citizens. It found adequate state protection is available and there is no ground based on well-founded fear for the Applicant not to seek state protection. 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. The Court could find no such vitiating elements in the Decision. 18.Second, the Applicant disagrees with the Director’s suggestion that she could relocate to live in other locations to avoid the moneylender. Though the Board had commented that it was safe for the Applicant to have moved her children to Lao Bao City, it placed no reliance on internal relocation in its Decision. This ground is irrelevant. 19.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 her. This is just an assertion based on the Applicant’s own speculation without any supporting evidence. This ground seeks to attack the Board’s finding on internal relocation, but as mentioned above, the Board had not placed any reliance on internal relocation. This ground is therefore irrelevant. 20.Lastly, she argues that the Board’s Decision is clearly unsafe and wrong. It gave no particulars why the Decision is unsafe and wrong. The Court had found blemishes and a mistake of law in the Board’s Decision, but for reasons as mentioned before, these blemishes and mistake have no effect or impact on the Board’s Decision. 21.In conclusion, there is no substance in any of the grounds advanced by the Applicant. In the absence of any proper 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 22.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied, subject to the comments below, 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. In its rigorous scrutiny of the Board’s Decision, the Court has found some problems in the Board’s Decision. These problems were discussed in paragraphs 8 to 10 and 14 when analysing the Board’s finding of the Applicant’s credibility and finding of facts. In the ultimate analysis, the Court considered the problems relating to the Board’s finding of credibility are immaterial as the Board assessed the Applicant’s case on the basis of the case as she asserted. As for the Board’s error in applying the wrong test in its finding under Torture Risk ground, the error had no effect on the Decision in view of the Board’s finding of availability of state protection. 23.As mentioned above, the Board assessed the Applicant’s claim on the basis of the case as she asserted and some further finding of facts based on her evidence and the COI. It found, inter alia, that the injuries she suffered did not attain the minimum level of severity, that the government or its officials were not involved in inflicting the injuries on the Applicant, that state protection would be available on her return to Vietnam and there is no ground based on well-founded fear not to seek protection. 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, except for the test for torture, 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. Other than the error relating to the test for torture the Court could detect no error of law or procedural unfairness in 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 discussed, the proposed judicial review has no realistic prospect of success. Conclusion 24.For the above reasons, the Applicant’s leave application is refused. Dated the 8th day of October 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 |
Summaries and metadata are generated from the judgment. Report an error
Cases cited in this judgment