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HCAL 1451/2023
[2025] HKCFI 1959
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1451 of 2023
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Pham Thi Bac |
1st Applicant |
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Luu Viet Hoang |
2nd Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicants’ amended application by Form 86 filed on 18 August 2023 as amended pursuant to this Court’s order dated 4 December 2024 by joining her son as the 2nd Applicant and making herself as the 1st Applicant. By the amended application, the Applicants seek leave to apply 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 11 August 2023 (“Decision (1)”) in respect of the 1st Applicant and dated 12 April 2024 (“Decision (2)”) in respect of the 2nd Applicant. By these decisions, the Board dismissed respectively the Applicants’ appeals against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 September 2021 (“Notice (1)”) and dated 18 July 2023 (“Notice (2)”) refusing their respective application for non-refoulement protection.
2. The 1st Applicant is a Vietnamese national, now aged 32. She was arrested by the police on 29 October 2020 for remaining in Hong Kong without the authority of the Director and transferred to the Immigration Department. On 12 November 2020, she made a claim for non-refoulement protection. She claimed to have fled Vietnam and sneaked into Hong Kong via Mainland China. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her application was rejected by the Director’s Notice (1). Her appeal against Notice (1) was dismissed by the Board’s Decision (1).
3. Whilst in Hong Kong, she gave birth to the 2nd Applicant on 27 October 2022. She made a non-refoulement claim on his behalf, which was also assessed on all four applicable grounds under the USM. The 2nd Applicant’s application was rejected by the Director’s Notice (2). His appeal against Notice (2) was dismissed by the Board’s Decision (2).
4. The Applicants now apply for leave to apply for judicial review of Decision (1) and Decision (2).
Lack of legal representation for the 2nd Applicant
5. At the hearing on 4 December 2024, the Applicants were advised of the requirements under Order 80 of the Rules of the High Court and advised to seek legal representation so that the case of the 2nd Applicant, being a minor, could be fully presented to the Court. They applied for legal aid on 11 December 2024. Their application was refused on 18 February 2025. At the hearing on 9 April 2025, the 1st Applicant representing the 2nd Applicant confirmed that their legal aid applications were refused and she had no financial resources to engage a private lawyer. She said that the 2nd Applicant’s case was based on the facts of her case and she was confident she could represent him. Having considered the applicable law, the re-amended leave application, the issues raised, that the Applicants had been legally represented before the Director, that no new evidence would be advanced, and the 1st Applicant’s expressed intention not to seek private legal representation, the Court was of the opinion that despite the absence of legal representation, their leave application may be justly determined without prejudicing the interest of the 2nd Applicant. The Court therefore considered the absence of legal representation a mere irregularity, which would not render the proceedings void and proceeded to hear their leave application.
The Applicants’ case
6. The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim forms (the “NCF”) prepared by the 1st Applicant with legal assistance and the record of her screening interviews (the “ROI”) in the presence of her lawyer. The 2nd Applicant’s case is rested on the 1st Applicant’s. In gist, their claim is that, if returned to Vietnam, they would be at risk of being harmed or killed by the 1st Applicant’s six creditors and their associates for being unable to repay the loans owed to them in the total sum of 70 billion Vietnamese Dongs (“VND”).
7. The 1st Applicant, now aged 32, was born and raised in Hai Phong, Vietnam. She had received twelve years of formal education and had ten years’ experience working as a salesperson and operating a trading business. She is divorced, and had a son from her previous marriage. Her parents and son are living in Vietnam.
8. In 2019, the 1st Applicant came to know a Korean man, surnamed Park (“Park”) and his wife in Vietnam Park and his wife were trading in Korean food and cosmetic products, which the Applicant was also interested in selling. Park suggested the Applicant to invest about VND 130 billion in those products. Hence, the 1st Applicant borrowed a total of 70 billion VND from six creditors, two of whom had triad background. The total monthly interest was about 4 billion VND. Together with her own saving of 60 billion VND, the 1st Applicant transferred VND 130 billion to Park in Korea.
9. In April 2019, she started selling those products, earning 30% commission from the sale, which was enough to pay the monthly interest. However, in July 2019, the Korean couple disappeared with her funds. She could not pay the monthly interest.
10. From July 2019 onwards, her creditors started demanding repayments from her. On one occasion, the two creditors with triad background went to her home together to demand repayment. One of their associates pulled her hair. Her neighbours intervened, and she managed to escape. Apart from that, there were no other attacks from the creditors. To avoid the creditors, she moved to stay in her relative’s home in Gia Lai for over a year. During her absence, the creditors frequently went to her parents’ home and threatened to kill the Applicant, if they found her, and vandalised her parents’ home; but they never asked her parents for her whereabouts. They also called her and threatened to kill her.
11. The 1st Applicant claimed that state protection was not available because the police in Vietnam are corrupt and some of the creditors had triad background. She does not believe internal relocation viable, as the creditors could locate her throughout the country through their triad network. Hence, in October 2020, the 1st Applicant fled Vietnam and sneaked into Hong Kong via Mainland China. On 27 October 2022, she gave birth to the 2nd Applicant in Hong Kong.
The finding of the Board
12. The 1st Applicant testified before the Board and made some first time allegations. The Board found there were significant inconsistencies between her testimony and the evidence in her NCF and ROI. In her NCF, she told the Board that she had received twelve years’ formal education. Before the Board she said she had in addition studied three years in Korea under a student visa from 2010 to 2013. She said she studied Korean language in the first year, beauty treatment in the second year and worked and studied in the third year. When asked why she omitted mentioning her study in Korea in her NCF, she said possibly because “they” spoke too fast and she did not pay attention. She was asked in her NCF if she could speak other languages, she wrote down “not applicable” without mentioning Korean which she said she had studied for one year. She was asked if she had obtained visa to travel to other countries, she put down “Japan” and “China”, but made no mention of Korea. Her testimony of having lived and studied in Korea from 2010 to 2013 is also inconsistent with her answer to question 20 in her NCF in which she said she worked as a saleslady in Vietnam from 2010 to 2017. In view of these inconsistencies, the Board came to the conclusion that the 1st Applicant had not lived and studied for three years in Korea. That fact is related to the core of her claim. Without a knowledge of the Korean language and beauty products, she could not have dealt with Park and his wife and Park’s wife could not have been able to introduce Korean clients to the Applicant as she claimed.
13. The Board found there are other less significant inconsistencies and that is incredible that for the past four years while the creditors were harassing the 1st Applicant’s parents, they would not have asked them for her whereabouts. On the whole, the Board found the 1st Applicant’s alleged risk is founded on unreliable information and evidence. It refused to accept her evidence. Hence, it found she had failed to prove her risk of harm and dismissed her appeal.
14. The Board went further and found even on the basis of her evidence, the risk of feared harm is low because the risk could be avoided or mitigated by internal relocation. The 1st Applicant had stayed in Gia Lai for over a year without any harassment from the creditors. That suggests the creditors do not have such a wide network or means to locate the Applicants anywhere in Vietnam. The Board found that the dispute between the Applicant and her creditor is a personal monetary dispute in which neither the government nor a public official was involved. Hence, the ill-treatment falls outside the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance and that the ill-treatment suffered by her would not be on account of a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol. It found the Applicant is not facing a death sentence and her life is not at risk of arbitrary deprivation, if returned to Vietnam. Applying the law applicable to non-refoulement protection to the facts, the Board found she has failed to establish the factual basis to entitle her to protection under any of the applicable grounds under the USM. Hence, it dismissed the 1st Applicant’s appeal against the decision of the Director in the Notice. As the 2nd Applicant’s claim is hinged on the 1st Applicant’s, it stands or falls with the 1st Applicant’s claim. The 1st Applicant has not advanced any minor specific claims in respect of the 2nd Applicant. Hence, the Board also dismissed the 2nd Applicant’s appeal against the Director’s Notice (2).
Legal principles applicable to judicial review
15. 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[5].
Grounds for judicial review
16. The Applicants advanced the following five grounds in her Form 86:
(1) the Director’s and the Board’s decisions are unfair and unreasonable;
(2) the Director failed to give proper weightage to the presence of state acquiescence;
(3) the Board acted unreasonably and procedurally unfairly by placing too much weight to COI without taking the Applicant’s personal background and experience into account;
(4) The Board was procedurally improper and unfair when assessing her explanations and asking questions that she was not in a position to respond; and
(5) the Director’s attitude was unfair, failed to give such argument into account or to give enough weight to such argument before reaching the decision; and
(6) the Board should have allowed the appeal.
17. These grounds are very familiar to the Court as it has seen similar or even identical grounds in other applications. They appear to be template grounds without sufficient particulars prepared by people assisting the applicants which usually have no bearing on the applications at issue. The 1st Applicant gave no particulars of the unfairness and unreasonableness alleged or particulars of the argument which she complained the Board had not taken into account. She complained about the Board failing to give proper weight to arguments but did not identify the arguments. At the hearing, after the legal principles in the above section had been explained to her, she confirmed that she had no complaint about errors of law, procedural unfairness and irrationality in the Decision. In the absence of arguable or grounds with adequate particulars, the Court could only focus on the usual challenges in a judicial review, ie errors of law, procedural unfairness or irrationality in its rigorous scrutiny of the Board’s decision.
Overall scrutiny
18. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied 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; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense and inherent probability. The 1st Applicant was the sole witness in her and the 2nd Applicant’s claim. The centerpiece of Applicants’ claim is the 1st Applicant’s inability to repay the loans she borrowed from six creditors because the Korean intermediary to whom she entrusted her funds had disappeared. The core of the centerpiece of her case is whether she had studied and lived in Korea for three years so that she has acquired the capability to communicate in Korean with the alleged intermediary and clients they introduced to her. The Board found the 1st Applicant incredible and that she had not lived and studied in Korea for three years as she alleged. It gave full reasons for its finding. It was on that basis that the Board found the Applicants had failed to establish the factual basis to support their claim for non-refoulement protection under any of the applicable grounds under the USM. This is a finding of fact solely for the Board, which the court in a judicial review will not interfere.
19. The Board went further and found, in the alternative, that even on the basis of the evidence as asserted by the 1st Applicant, they are not entitled to protection as a matter of mixed law and fact. Insofar as they are finding of the law, 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. The Court could detect no error of law or procedural unfairness in the 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. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
20. For the above reasons, the leave application as amended is refused.
Dated the 19th day of May 2025
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( Seline Sze )
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:
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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)).
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Sent to the Applicant
on 19/05/2025
Pham Thi Bac
Luu Viet Hoang
Applicant’s ref. no:
Nil
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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 19/05/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 22066
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1041/21 (Formerly RBCZ/294/20)
QA T/C 502/23 (Formerly RBCZ5000435/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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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 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”)
[3] 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
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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