VI THI THAO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1721/2021

[2026] HKCFI 2632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1721 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 15 December 2021 and filed on 20 December 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 26 October 2021 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001721_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to substantiate a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 February 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board / Non-refoulement Claims Petition Office and the Director as the putative respondents and did not name any putative interested party in Form 86, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

4.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all. 

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or killed by a moneylender named Nguyen Van Hung (“Nguyen”) due to her inability to repay the loan obtained from Nguyen.

Disposal on paper

8.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.  The applicant did not advance any ground for her intended judicial review in Form 86.  In her supporting affirmation dated 20 December 2021, the applicant merely stated that the decision had been reached unfairly without allowing her an opportunity to clarify her case and situation in her country.

Discussion

11.  First of all, the applicant’s assertion in her affirmation that the Board’s Decision had been reached unfairly without allowing her an opportunity to clarify her case and situation in her country is simply not true.

12.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 21 May 2021 and the applicant was present.  Thus, the applicant did have the opportunity to present her case to the Board in person.  The fact that her case was not accepted does not mean that the Board failed to give her an opportunity to clarify her case and/or the situation in her country.  Thus, what the applicant alleged in her affirmation cannot amount to a valid ground for her intended judicial review.

13.  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 [2018] HKCA 524).

14.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

15.  As can be seen from the Board’s Decision, the Board found the applicant’s account to be completely implausible and unreliable.  The Board found that the applicant had fabricated a story of having borrowed money from a moneylender and subsequently being harmed and threatened without considering whether the story was logical, credible and plausible.

16.  The Board also found that the discrepancies in the applicant’s account, especially on the number of assaults she encountered, was simply an exaggeration with the aim to boost her claim before the Board.

17.  Thus, on the totality of evidence, the Board was not persuaded that the applicant had borrowed money, and had been assaulted and threatened by a moneylender, or otherwise ill-treated, in Vietnam.  The applicant had therefore failed to establish, even to the low standard required, that she would face any ill-treatment if she was refouled to Vietnam.

18.  Nevertheless, the Board did go on to assess the applicant’s claims on the assumption that her account was accepted.  However, the Board still found that the applicant was not able to substantiate a case for non-refoulement protection.  Even on the applicant’s own account, the harm by the moneylender did not attain the minimum level of severity.  The moneylender was a non-state actor and there was no evidence of state acquiescence in the alleged ill-treatment of the applicant.  The applicant’s dispute with the moneylender was a private dispute.  The applicant’s fear of the moneylender was not for a Convention reason.

19.  Moreover, the Board found from objective country of origin information (“COI”) that despite shortfalls, there was sufficient state protection in Vietnam.  The applicant would be able to seek protection from the state should she require it.

20.  Further, the Board found that internal relocation was a viable alternative for the applicant.  There was no evidence to show that the moneylender had the resources and power to locate the applicant had she moved to stay and live in provinces or cities other than her own.  The moneylender’s influence was localized and the evidence showed that the moneylender was operating on a small scale with limited resources.  The Board considered that it was not unreasonable or unduly harsh for the applicant, who had received 11 years of education and demonstrated that she could live independently even in a completely foreign place like Hong Kong, to relocate to a place of her own choice in Vietnam to avoid any perceived threat from the moneylender upon her return to Vietnam.

21.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

22.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

23.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

24.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.  For reasons aforesaid, the Leave Application is dismissed.

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