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HCAL 3391/2019
[2025] HKCFI 3696
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3391 OF 2019
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Pham Thi Hien |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
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 and filed on 14 November 2019, 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 7 November 2019 (“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/2019/HCAL003391_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection were not made out on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 13 September 2017.
Amendments
3. The applicant named the Board and the Director as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent and only the Director should be the putative interested party.
4. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, her creditor named VAN and the creditor’s subordinates would harm or even kill her for being unable to repay her debt.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application. Her case was heard on 3 June 2025.
8. When this court asked the applicant to elaborate on the grounds for the intended judicial review as stated in her supporting affirmation dated 14 November 2019, the applicant said that she could not remember because it was too long ago, but she was in debt to her creditor VAN and she wanted this court to reconsider her situation.
9. The applicant said that she wanted to stay in Hong Kong until her creditor had “calmed down”, and also until her husband was arrested, as her husband was a drug addict and would abuse her when she could not give him money to buy drugs.
Grounds for judicial review
10. 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).
11. The applicant did not provide any ground for the intended judicial review in Form 86, but in her supporting affirmation, the applicant advanced some grounds, which can be summarized into 4 grounds as follows:-
(1) The Board made a wrong decision because of its lack of understanding of the situation in Vietnam. The applicant did not agree that state protection would be available to her, as corruption is a very serious problem in Vietnam.
(2) The Board’s Decision was unreasonable. The applicant believed that the Board’s finding that the creditor’s true intention was to make the applicant repay the debt, and did not have a real intention to seriously harm or kill her was just the Board’s speculation.
(3) The Board disregarded the fact that the creditor was a triad member and that triads in Vietnam are all associated with the police. Hence, even if she seeks assistance from the police, she would not be able to obtain any assistance.
(4) The Board disregarded the gross violation of human rights in Vietnam.
Discussion
12. In the 1st Ground summarized above, the applicant asserted the Board’s lack of understanding of the situation in Vietnam led to its wrong conclusion that state protection was available to the applicant if she were to return to Vietnam. The applicant quoted from 2 pieces of news, the first one undated and the second one in 2006, to submit that corruption was a very serious problem in Vietnam. The applicant asserted that the reason why she did not seek assistance from the police when she was in Vietnam was because she would need to pay a bribe, or the police would simply treat her problem as a private dispute and refuse to handle her report.
13. The Board had specifically noted the corruption problem in Vietnam in its decision, and cited country of origin information (“COI”) which supported this finding in paragraph 47 of the Board’s Decision. However, in paragraph 48, the Board also quoted from reliable COI that the Vietnamese government was taking steps to improve its ability to protect its citizens and to advance police integrity. The Board did provide detailed reasons for its finding that state protection was available to the applicant in paragraphs 49-51 of its decision. Thus, the Board was fully aware of the situation in Vietnam based on reliable COI before finding that state protection was available to the applicant.
14. In the 2nd Ground summarized above, the applicant challenged the Board’s finding that the creditor’s intention was not to harm or kill her. The Board had given its reasons for such finding in paragraphs 37-39 of its decision. The finding was based on the evidence provided by the applicant. This court finds nothing wrong or unreasonable for the Board to come to that conclusion.
15. As to the 3rd Ground, the applicant contested that the Board had disregarded the facts that the creditor was a triad member and triads in Vietnam were all associated with the police. However, the Board did consider the applicant’s evidence on this issue in paragraphs 42-43 of its decision and found that there was no evidence to support her creditor being associated with the police or the authorities.
16. The applicant asserted in the 4th Ground that the Board had disregarded the gross violation of human rights in Vietnam. The applicant did not present this argument to the Board. In any event, an applicant seeking non-refoulement protection needs to demonstrate that the perceived risk is personal and real. Even if there exists a consistent pattern of gross, flagrant or mass violations of human rights, this per se does not constitute sufficient ground to show that a particular applicant will face torture.
17. The applicant’s assertions at the oral hearing before this court cannot assist her in the Leave Application. The Board had already examined and decided on the applicant’s feared threat from her creditor in full. The additional ground that she might face ill-treatment from her husband was not advanced before the Board. In fact, contrary to what she told this court, it was the applicant’s evidence before the Board that she did not know the whereabouts of her husband and children (see paragraph 20 of the Board’s Decision).
18. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090), the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
19. It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.
20. 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).
21. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 15 April 2019. Thus, the applicant did have the chance to present her case to the Board in person.
22. The Board found that from early 2015 until her departure from Vietnam, for the purpose of debt collection, the creditor merely uttered verbal threats to the applicant without physically injuring her. The Board considered that the creditor and her associates had sufficient resources to execute their threats to harm or kill the applicant if they wanted. However, the behavior of the creditor and her associates indicated to the Board that their real intention was to use threats as a means to force the applicant to repay the debt as soon as possible rather than harming or killing her.
23. Besides, the applicant managed to escape from her home and moved around in Vietnam before coming to Hong Kong via Mainland China, which showed that there was no problem with her physical, psychiatric and psychological health. Hence, the Board found that the sufferings suffered by the applicant did not attain a minimum level of severity.
24. In addition, the Board found that her dispute with the creditor was purely private in nature, which showed that the ill-treatment inflicted in the past and to be inflicted in the future lacked involvement, active or otherwise, by a public official or other person acting in an official capacity in Vietnam.
25. In assessing the availability of state protection and the viability of internal relocation, the Board referred to COI from the applicant’s country from different sources. While noting the problem of corruption, the Board found that the Vietnamese government had taken steps to improve the effectiveness of the police and combating illegal behavior. Thus, the Board considered that there was reasonable state protection ready and available to the applicant on her return if sought, and her belief that the police and authorities would not render assistance to her was merely her own speculation.
26. As to internal relocation, the Board found that as an able-bodied person with eight years’ education and many years of work and business experience, the applicant could relocate to other parts of Vietnam such as Ho Chi Minh City and places where she had stayed to avoid the creditor before she left the country without undue hardship. This could further reduce or negate the perceived risks of harm from the creditor and her associates, which were localized in her home area.
27. After due consideration of the law and the evidence of the applicant, the Board found that there were no substantial grounds for believing that the applicant would be subjected to any of the proscribed forms of harm if she were to be sent back to Vietnam.
28. Thus, the Board had duly considered the danger as alleged by the applicant.
29. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to reach its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
30. 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.
31. 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
32. For reasons aforesaid, the Leave Application is dismissed.
Dated the 19thday of August 2025
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( Irene LEE )
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/Handed to the applicant/the applicant’s solicitors
on: 19 August 2025
Applicant’s ref. no:
Nil
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Sent/Handed 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 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 8586/17/9/258/V168 7
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1934/17
(Formerly RBCZ/14162/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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