Do Thi Bich Thao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 873/2022 [2026] HKCFI 5803 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CNSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 873 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 2 September 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 24 August 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 August 2021 refusing her application for non-refoulement protection. 2.The Applicant is a Vietnamese national, now aged 50. She entered Dong Xing from Vietnam in August 2020 and then sneaked into Hong Kong. She was arrested on 10 September 2020 for using an identity card belonging to another and for taking up employment. On 10 March 2021, she lodged a non-refoulement claim 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 3.The factual background leading to the present application, the basis of the Applicant’s 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[1] for reference. In gist, the Applicant claims that, if returned to Vietnam, she will be harmed or killed by a loan shark for being unable to repay the interest and loans she borrowed from her. 4.The Applicant’s case is as follows. She borrowed 300 million Vietnamese Dongs from her relatives for treating her husband’s heart disease in 2015. Her husband had a successful operation, but his health remained poor. To relieve his burden, the Applicant borrowed 200 million Dongs with no fixed term at a monthly interest of 6 million Dongs from a loan shark to change her restaurant into a shop selling children’s clothes. The shop started operation towards the end of 2018. The business failed. She could only pay interest for two months. As at the time she filed her non-refoulement claim, she owed the loan shark 500 million Dongs in principal and interest. 5.Since mid-2019, the loan shark and her underlings visited the Applicant every ten to twelve days to demand payment. They sometimes carried wooden poles and threatened her, but never hurt her. The loan shark gave her four extensions of time to pay. Towards the end of the year, the loan shark and her underlings came carrying knives and wooden poles. They pressed for payment and threatened that something dreadful would happen if she did not pay, but they did not hurt her. 6.A week later, the loan shark and her underlings came. They vandalised her shop and pushed the Applicant to the ground. The Applicant suffered some mild injuries. The loan shark gave her another chance to pay but threatened her with death. Out of fear, the Applicant fled to Mong Cai. 7.She stayed in Mong Cai for seven to eight months. She never encountered the loan shark there but was told by her husband that the loan shark came to look for her every one or two months. Eventually, she fled to Dong Xing and then sneaked into Hong Kong in August 2020. The finding of the Board 8.The Applicant testified before the Board. The Board noted that the Applicant’s evidence was confusing and inherently inconsistent and her case was illogical and incredible. The Applicant used to operate a restaurant. She claimed that to relieve her husband’s workload she switched to sell children’s clothing and borrowed 200 million Dongs from the loan shark for that purpose. But previously, she had suffered loss selling children’s clothing. She could not explain why given her previous bad experience she would have switched back to selling children’s clothing again. The Board also noted that the Applicant had never mentioned about changing her restaurant into a shop selling children’s clothing, but she insisted that she had. It also found it incredible that she would have borrowed from a loan shark with triad background to switch from her business which was working to one which she had experienced loss. It did not accept her explanation that she could not take up employment because she had to look after her husband for the reason that he could not carry a load of 5 kilogrammes. It also did not accept her explanation that she could not obtain financial assistance from her two working adult children. On the other hand, the Board found her evidence about the loan, the debt collection events and date when she fled to Mong Cai confusing and inconsistent, which cast doubt as to whether her account was from her true experience. 9.However, the Board assessed her claim on the basis of the case as the Applicant asserted. It found despite a number of visits by the loan shark and her underlings, the loan shark’s attitude was mild and gentle. Except for pushing her once onto the ground occasioning minor injuries, they never assaulted her. They never harmed her family. The Applicant never suffered serious injuries which attained the minimum level of severity or caused severe physical or mental pain and suffering. On the basis of authoritative and credible country of origin information (“COI”), the Board found the Vietnamese government took serious actions against moneylending and illegal debt collection activities in Vietnam. It was satisfied that adequate state protection would be available in Vietnam. It found the dispute between the Applicant and the loan shark is a personal dispute and any persecution arising from such dispute would not be on account of one or more of the reasons enumerated under the 1951 Convention relating to the Status of Refugees the convention reasons, ie race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”). 10.Applying the law applicable to non-refoulement protection under the USM, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the Decision of the Director. Legal principles applicable to judicial review 11.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 12.The Applicant advanced five grounds of application in paragraphs 5 to 9 of Section B of a document titled ‘Grounds on which relief is sought’ (the “statement of grounds”) annexed in her Form 86. The Court is familiar with these grounds as it had seen them in many other leave applications. They are general accusations without particulars. The Applicant said they were prepared by her friend based on what she told him. She said she understood those grounds and was able to provide particulars or elaborations. However, when particulars were asked for, she was unable to provide any meaningful particulars. She merely repeated her case. Some of these grounds are directed at the Director. For the benefit of the Applicant, the Court assumes that all the grounds are directed at the Board. 13.First, the Applicant submits in paragraph 5 of the statement of grounds 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 was satisfied from its study of the COI that the Vietnamese government had devoted great efforts in dealing with 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: see paragraphs 43 to 44 of its Decision. 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. 14.Second, she disagrees with the Director’s suggestion that she could relocate to live in other locations to avoid the moneylender. She claims that because of her personality and poor health, she could not relocate. These allegations had never been advanced before the Board. Though the Director had studied extensively into the COI and found that internal relocation within Vietnam is a viable option to avoid the risk of harm from the loan shark, the Board nevertheless did not find it necessary to consider the issue of internal relocation in view of its finding that state protection is and would be available and that the Applicant had failed to prove her entitlement to protection under all the applicable grounds. The issue of internal relocation is wholly irrelevant. 15.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 irrelevant. 16.Fourth, the Applicant argues that the Board’s Decision is clearly unsafe and wrong. She gave no particulars as to why the Decision is unsafe and wrong. However, in its rigorous scrutiny of the Board’s Decision, the Court found there are problems in the Board’s Decision relating to BOR 2 Risk ground. These problems are dealt with separately in the next section. 17.Fifth, the Applicant argues that the Director’s decision to refuse her claim was wrong. She gave no particulars as to what was wrong. In the absence of particulars, this Court could not explore the validity of this ground, but will bear this allegation in mind in its overall scrutiny of the Decision. 18.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. Observations on the Board’s Decision under BOR 2 Risk ground 19.At paragraph 18 of its Decision the Board stated its opinion of the law applicable under BOR 2 Risk ground as follows:
20.Applying this test, the Board found the Applicant had failed to establish her claim under BOR 2 Risk ground. It said at paragraph 45 of its Decision:
21.In essence, the Board said that to succeed under BOR 2 Risk ground, a claimant has to prove two requirements: first, the ill-treatment he will suffer must reach a minimum level of severity; and second, that there will be a high risk that he will suffer real physical harm or serious physical or mental suffering and a real, personal and irreparable risk of torture on his refoulement. The Board quoted no authorities to support its test for BOR 2 Risk ground. It appears that the Board combined the test for BOR 3 Risk ground and Torture Risk grounds to formulate its test for BOR 2 Risk ground. BOR 2 Risk ground protects against arbitrary deprivation of a person’s inherent and non-derogable right to life. It is difficult to see how injuries attaining a minimum level of severity or severe physical or mental suffering which are short of arbitrary deprivation of one’s inherent right to life could be relevant in determining BOR 2 Risk ground. The Board may have misunderstood the ambit of BOR 2 Risk ground. 22.BOR 2 mirrors article 6 of the International Covenant on Civil and Political Rights (“ICCPR”). That article has been consistently construed by the courts of state parties to ICCPR as imposing obligation on state parties to refrain from intentional and unlawful taking of life and to take appropriate steps to safeguard the lives of individuals within its jurisdiction: see ARJ v Australia[3], GT v Australia[4], and Osman v United Kingdom[5]. In the context of non-refoulement protection, an obligation of that wide import could only be discharged by state parties to the ICCPR or the receiving state to where the claimant will be refouled or by the host state by refraining from removing a claimant to the receiving state where his right to life will be at risk of arbitrary deprivation. Likewise, the obligation could only be breached by state parties to the ICCPR or by the refouling state or Hong Kong under BOR 2; but not by acts of a non-state body in the receiving state causing severe injuries or pain and suffering for any reason or purpose. More recently, Lord Brown in the House of Lords in Bagdanivicius[6] held that in cases where the risk emanates from intentionally inflicted acts of the public authorities in the receiving state, the intentionally inflicted acts would without more constitute the proscribed treatment. But if the risk emanates from non-state bodies, any harm inflicted by the non-state agents will not constitute ill-treatment unless in addition the receiving state has failed to provide reasonable protection. In Ubamaka Edward Wilson v Secretary for Security and Director of Immigration[7], the Court of Final Appeal held that if there are substantial grounds for the Immigration Department to believe that there is a personal and substantial risk of a claimant’s right under BOR 2 being violated in the receiving state should he be refouled there, it constitutes a good ground for restraining the Immigration Department from removing him to that state. As distilled from these authorities, the test for BOR 2 Risk ground is whether there are substantial grounds for believing that there is a personal and substantial risk of a claimant’s right under BOR 2 being violated, if the claimant is refouled, by the receiving state or by non-state actors there against which the receiving state would be unable or unwilling to provide adequate protection. The standard of protection is not the absolute standard, but a practical standard. 23.Applying the above test to the circumstances of this case, the factual issues raised by BOR 2 Risk ground are whether there are substantial grounds for belief that there is a personal and substantial risk of the Applicant’s right under BOR 2 being violated (i) by a death sentence passed in Vietnam against her in violation of BOR 2(2) to (6); or (ii) by other intentional acts of the Vietnamese authorities; or (iii) by other intentional acts of non-state actors against which Vietnam will be unable or unwilling to provide her adequate protection. If no death sentence has been imposed on the Applicant or if she would not be at risk of having one being passed on her on her return to Vietnam, prima facie, BOR 2 Risk ground would not be engaged, unless her life would otherwise be at risk and the Vietnamese authority would be unable or unwilling to provide her with adequate protection. If a death sentence has been or would be imposed on the Applicant, the next issue would be whether the refoulement would expose her to the necessary and foreseeable consequences involving breaches of article 2(2) to (6) of BOR 2, for example whether she is a minor under eighteen or a pregnant woman. 24.Though it appears that the Board had not made any express finding that a death sentence has been passed on the Applicant, it is not the Applicant’s case that such a sentence has been passed on her. In paragraph 18b of its Decision, the Board dismissed article 2(2) to (6) as irrelevant. That is clear indication that the Board also understood that no death sentence had been passed on the Applicant. All along, the thrust of the Applicant’s case is that she is only at risk of harm from the loan shark who is a non-state actor. But against that, the Board found adequate state protection was available and would be available to the Applicant on her return to Vietnam and there was no indication that she would not be able to access it. The Applicant had identified no other intentional acts of the Vietnamese authority. All these three factual issues have been resolved by the Board against the Applicant. The fact that no death sentence has been passed on the Applicant is an incontrovertible fact. The other facts are solely the Board’s finding of fact which this Court may not intervene save for errors of law, procedural unfairness and irrationality in the Decision. On the evidence, it was open to the Board to make those finding of fact and this Court could detect no such vitiating elements in the Board’s finding or in the Decision. These findings were made independently of the Board’s mistake in its misunderstanding of the BOR 2 Risk ground. Despite its mistake on the law, on the basis of its finding of fact which is beyond challenge and on the basis of the law as stated by the Court of Final Appeal in Ubamaka, BOR 2 Risk ground is not engaged in this case. Thus, on the eventual analysis, the Board’s construction of BOR 2 or its misunderstanding of the law relating to BOR 2 Risk ground has no adverse impact on the Board’s decision under BOR 2 Risk ground. This case is not one in which the Applicant’s life will be at risk of arbitrary deprivation from the receiving state or from non-state actors in the receiving state against which the receiving state will be unable or unwilling to provide her with adequate protection. BOR 2 Risk ground is not engaged. Observations on the Board’s Decision under the remaining three grounds 25.Despite the Board has doubts on the credibility of the Applicant’s case, it 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 Applicant had not been inflicted with any serious pain and suffering or injury, let alone one which attained the minimum level of severity, that state protection would be available on her return to Vietnam, that the Applicant’s dispute with the loan shark is a personal monetary dispute and her feared risk is not on account of a Convention reason. 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 all three remaining applicable grounds. These are mixed finding of fact and of the law. Insofar as they are finding of the law, save for its misunderstanding of the BOR 2 Risk ground, they are absolutely correct. The finding of fact was made independently of the mistake. The Board’s mistake had no impact on the its Decision and its finding of fact. The finding of fact is 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 BOR 2 Risk ground which had no impact on the Decision, this 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. Viewed in the round, not only that the Board’s misunderstanding of the law relating to BOR 2 Risk ground has no adverse impact on the Board’s decision under BOR 2 Risk ground, it has no impact on the Decision under all grounds. Overall scrutiny 26.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied, except for its statement of the law relating to BOR 2 Risk ground, 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. Other than that error, the Court could detect no error of law or procedural unfairness or irrationality in the Board’s Decision. 27.Viewed as a whole, the Board’s error is a minor technical error of construction of BOR 2 which has no adverse impact on its decision under BOR 2 Risk ground and on the Decision as a whole. Had the Board properly directed itself, it will not reach any other decision. Hence, this Court is of the view that the Applicant should not be entitled to any remedy on a judicial review. The Board’s mistake has caused her no harm or prejudice. Even if leave were granted and this part of the Decision is quashed on review, the Applicant will inevitably obtain no remedy at a rehearing of the appeal by a Board properly directed on the law. The review, if allowed to proceed, would be a complete waste of judicial time and costs. In the circumstances, it would be appropriate for this Court to withhold remedy from the Applicant on the basis that she has suffered no harm or prejudice as a result of the mistake: see for example, Cinnamond v British Airports Authority[8] and Simplex GE (Holdings) Ltd v Secretary of State for the Environment[9]. 28.For these reasons, the Applicant’s leave application is refused. Dated the 20th day of October 2026
Form CALL-1 [1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000873_2022_files/the_Board's_Decision.pdf [2] [2018] HKCA 524 at [14(1)] [3] CCPR/C/60/D/692/1966, UN Human Rights Committee (HRC), 11 August 1997 [4] CCPR/C/61/D/706/1996 (4 December 1997) http://www.refworld.org/docid/4ac9acbfd.html [5] (1998) 29 EHRR 245 [6] Regina v Secretary of State for the Home Department (Respondent) ex parte Bagdanavicius (FC) and another (Appellants), [2005] UKHL 38 at para 24, [2005] 2 AC 668; [2005] 4 All ER 263; [2005] WLR 1359 [8] [1980] WLR 582 [9] [2017] PTSR 1941 at 1060B-1060F |
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