PHAN THI THU TRANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 791/2022

[2026] HKCFI 3058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 791 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 18 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 28 July 2022 (the “Decision”) dismissing her appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 October 2021 (the “Notice”) refusing her application for non‑refoulement protection. 

2.  The Applicant had requested an oral hearing.  A hearing on 13 May 2026 was scheduled and notice of hearing was sent to him by post to her address as stated in her Form 86 and her up-to-date address as discovered from the Immigration Department on 10 March 2026.  The Notice has not been returned through the post.  The Applicant had never informed the court of any change of address.  There is nothing to suggest that she had not received the letter or had moved.  On the afternoon of the day before the hearing, a court staff attempted to contact her by telephone to remind her of the hearing, but the call was not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that it had tried its best endeavour to bring the hearing to his notice.  She did not appear at the hearing.  Having also considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court is satisfied that the leave application may be justly determined on paper without an oral hearing.

The Applicant’s claim

3.  The Applicant is a Vietnamese national, now aged 35.  She had received 12 years’ education and had 3 years’ experience as a sales person. She was arrested by the police on 26 September 2020.  She claimed to have sneaked into Mainland China from Vietnam on 25 November 2019 and then sneaked into Hong Kong on 27 November 2020.  On 29 October 2020, she lodged a non-refoulement claim by written signification.  Her personal background, the factual background leading to the present application, the basis of her 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 in detail.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, she claims, if returned to Vietnam, she will be harmed or killed by a moneylender for being unable to repay the loan she had borrowed from the moneylender.

4.  The Applicant’s case as advanced in her non-refoulement claim form (“NCF”) is as follows.  She had some experience promoting sale of milk powder in a supermarket.  In March 2017, she borrowed 100 million Vietnamese Dongs from a moneylender at a monthly interest of 2 million Dongs to start her business selling milk powder.  She rented a shop of 100 square feet.  She had no employee.  She was able to pay monthly interest.  All went well until December 2017 when her business was greatly reduced with the decline in economy.  Her stock piled up.  Her husband abandoned her and her son.  Seeing that her business had flopped, the moneylender started to chase her for payment.  One night in February 2018, four to five of the moneylender’s underlings went to her shop to demand payment.  On hearing that she could not pay, they vandalised the shop and forced her into a seven-seater vehicle.  She was taken to a brothel in Mong Cai.  She was forced to do domestic work and gang-raped by the underlings.  She was also forced to work as a prostitute and threatened with beating and death if she refused.  In mid 2018, with the help of other prostitutes, the Applicant managed to escape via the back door.  She took a taxi for four hours to returned to her home in Ha Long.  Out of fear of revenge from the moneylender, she did not report the incident to the police.  She did not say how long she stayed in her home in Ha Long.  But, she said in July 2018, she took a taxi back to Mong Cai.  Then she stayed in Mong Cai for about 15 months until November 2019 when she sneaked into Dongxing in Mainland China.    From there, she sneaked into Hong Kong.

5.  In her record of screening interview (“ROI”), the Applicant made three significant changes in her account.  First, she said the amount of loan and monthly interest written in her NCF were incorrect.  She said that she had borrowed one billion Dongs at a monthly interest of 200 million Dongs, thus increasing the amount of loan and interest rate ten folds and the actual amount of monthly interest a hundred folds.  The monthly interest rate was thus increased from 24% per annum to 240% per annum.  Then, she clarified that the so-called ‘interest’ includes an element of repayment of principal, ie 2 million Dongs as interest and 198 million Dongs as repayment of principal.  She put the blame for the mistake on her duty lawyer and interpreter.

6.  Second, she said in her ROI is that after her escape from the brothel in Mong Cai and returned to her home in Ha Long she only stayed there for three hours.

7.  Third, she said when she left Ha Long she took a taxi to Cao Bang and not back to Mong Cai.  Again, she put the blame on the interpreter.

The Board’s finding

8.  The Applicant testified before the Board.  The Board found numerous contradictions and inconsistencies among her evidence in her written signification, NCF, ROI and her testimony before the Board.  It found significant problems in her account about the loan, her abduction and ill-treatment in Mong Cai. 

9.  The changes in her evidence in the ROI about the amount of the loan and interest created a lot of inexplicable inconsistencies and implausibility in her account.  For example, in answer to the Board’s question as to how with her shop of 100 square feet she could have sold enough milk powder to cover the monthly payment of 200 million Dongs (equivalent to HK$68,000), she said her shop could sell 300 Dongs (equivalent to HK$102,000) worth of milk powder per month.  The Board found it implausible.

10.  The Board found inexplicable contradictions and gaps in her account.  The Applicant said in the NCF that she escaped from the brothel in Mong Cai in mid-2018 and took a taxi home to Ha Long.  Then she took a taxi back to Mong Cai in July 2018.  Yet, she could not tell the Board when within that interval of time she escaped.  The problem appears to be that she had said in the ROI that after she returned to her home in Ha Long she only stayed there for three hours.  More troubling is why did she almost immediately return to Mong Cai where she had been held as a prostitute and why did she stay there for 15 months.  When these were put to her in the ROI, again she put the blame on the interpreter and her duty lawyer saying that she had actually said that she took the taxi to Cao Bang.  But that could not explain why she acknowledged in the NCF that the completed NCF had been read back to her and she confirmed that the information therein was complete, true and correct.  Her explanation for the long stay, whether in Mong Cai or Cao Bang, is that she had to take time to arrange her passage to China.  Finally, more fatal is her first story to the Immigration Department in her written signification dated 29 October 2020 that it was her family which went to Mong Cai to look for her and saved her. 

11.  The Applicant was asked why she did not apply for protection when she sneaked into Hong Kong on 27 November 2019 but only applied a month after she was arrested by the police on 26 September 2020.  She said at first she did not know and when she knew later she was scared of having to go to jail.  That contradicts her evidence in the NCF that she was advised by the other prostitutes to go to Hong Kong to apply for protection.

12.  The Board did not find the Applicant’s evidence credible.  It was unable to attach any weight to her evidence that she had borrowed money from a moneylender, and had been abducted, raped and forced into prostitution for failing to repay the loan.  It found she had not been subjected to ill-treatment in the past and had failed to establish, even to the low standard required, that she will face any ill-treatment if she is refouled to Vietnam.

13.  Applying the law applicable to non-refoulement protection to the above facts, the Board found there is no real risk that the Applicant will be at risk of any of the proscribed harm if she were removed to Vietnam.  In view of that finding, it considered the issue of internal relocation did not arise.  It came to the conclusion that the Applicant had failed to establish her entitlement to protection under any of the four applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed her appeal.

Grounds for judicial review

14.  The Applicant had advanced three grounds in her Form 86:

15.  First, she submits that if returned to Vietnam, her life will be seriously threatened.  She will be tortured, beaten or even killed because the moneylender and his underlings are cruel, violent, have no regard for the law and are willing to kill to satisfy their anger and ferocity. 

16.  Second, the Applicant disagrees with the Director’s suggestion that she could relocate to live in other locations to avoid the moneylender because she could not find employment in the new location owing to her health, personality and the disadvantage she would suffer in the labour market.  For her benefit, the Court assumes that this complaint is directed at the Board. 

17.  Lastly, she 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 his underlings to find her out and harm him. 

18.  These grounds are direct challenges of the Board’s finding of fact that there is no real risk that the Applicant will experience harm, persecution or violation of right to life if she were removed to Vietnam.  It is not open to the court in an application for judicial review to intervene in such finding of fact by the Board.  As was noted by the Board, the issue of internal relocation does not arise because of its finding that there is no real chance that the Applicant will be harmed if returned to Vietnam. 

19.  There is no substance in any of the grounds advanced.  In the absence of any particularized 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

20.  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 carefully and tested it against common sense, inherent probability and COI.  It rejected almost the entirety of the Applicant’s case.  Practically, she has no factual basis to support her claim for protection under any of the applicable grounds under the USM.  Applying the law applicable to non-refoulement protection to the facts it found, the Board was not satisfied that the Applicant had proved her entitlement to protection under any of the applicable grounds under the USM. 

21.  The Board’s finding are mixed findings of fact and of the law.  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 in 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

22.  For the above reasons, the Applicant’s leave application is refused.

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