VU DAO HANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2493/2019

[2025] HKCFI 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2493 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 23 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 20 January 2025. I shall deal with her application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 53, is a national of Vietnam. She entered Hong Kong illegally on 30 November 2015 and surrendered to the Immigration Department on 1 December 2015. On the same day, she raised her non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her creditor because she was unable to repay her loan.

5.  According to the applicant, she borrowed 2 million Vietnamese currency from her creditor for her business in 2008. For the first 2 years, she was able to pay the interest. Since 2011, she was unable to pay the interest. Her creditor gave her time to repay in the first few months. Later, her creditor brought with her 4 cousins to demand repayment of the loan and interest. She was unable to do so. They then framed her up for traffic accidents, went to her house, armed with long sticks and knives, where they vandalize it and assault her. They also threatened to harm her daughters. The applicant moved to live in other places. However, she was found by the creditor’s cousins and was brought back to her home where they assault her and her daughters with wooden sticks. On 27 November 2015, she left Vietnam for China and finally came to Hong Kong illegally. Details of her story are set out in paragraph 6 of the Director’s Notice of Decision dated 12 May 2017 (“the Director’s Decision”).

The Director’s Decision

6.  The Director had considered the following risks:

(a) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(c) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(d) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the injuries caused by the creditor on her did not meet the minimum level of severity [10]-[14]; (ii) state protection will be available if she returns to Vietnam [15]-[16]; and internal relocation is a viable option [19]-[26].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 19 February 2019, the Board conducted an oral hearing for her with an interpreter.

9.  Having considered the applicant’s evidence, the Board came to the conclusion that it did not accept the factual evidence in support of her claim as it found:

“48(d) I am not convinced that after over 3 years the Creditor and her followers are still chasing the Appellant all over her home country and still want to harm her.

48(e) The centerpiece of her story does not stand. I find her dishonest and unreliable, and that she is not a genuine claimant.”

For those reasons, the Board rejected her claim on all applicable grounds. [49]

10.  For the above reasons, the Board dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 28 August 2019 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has raised no specific ground to challenge the Board’s Decision in support of her application.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  In my view, the Board was entitled to come to its views above.

17.  The applicant has raised no valid ground to challenge the Board’s Decision.

18.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.