NGUYEN THI HUONG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1849/2019

[2025] HKCFI 2659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1849 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicants being absent in open court;

Leave for the Applicants to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Nguyen Thi Huong (“A1”) and Ms To Thi Kieu Diem (“A2”) (together “Applicants”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 24 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 8 December 2017 (“DOI Decision”) in refusing the Applicants’ claim for non-refoulement protection (“Claim”).

2.  In the DOI Decision and the Board’s Decision, A2 was named “Do Thi Kieu Diem”.  In the recognizance form, A2 was named “To Thi Kieu Diem”.  In these proceedings, the name of A2 stated in the recognizance form, which is a formal identification document, is adopted.

Background of the Applicant and the Claim

3.  Both Applicants are Vietnamese.  A1 is the mother of A2.  A1 was born on 30  May 1987 in Vietnam whereas A2 was born on 15 June 2017 in Hong Kong.

4.  A1 received about 6 years of education and had worked as shoes maker and hawker.  She had also operated a restaurant in Vietnam (“Restaurant”) in 2015.

5.  In March 2015, A1 borrowed Vietnamese Dong (“VND”) 300 million to be repaid in one year (“Loan”) from a moneylender (“Lender”) in Vietnam to start the Restaurant.  Monthly interest for the Loan was VND 10 million.

6.  She paid interest to the Lender from April to August 2015.  She did not make further payment to the Lender after the Restaurant was closed in August 2015 because of poor business.

7.  Since September 2015, the Lender sent 3 triad members to A1’s home everyday to chase for repayment of the Loan.  They threatened to kill A1 and her family member or force her into prostitution to earn money to repay, if she failed to repay the Loan.  They vandalized her home and beat her with bare hands on 3 occasions. (“Incidents”)  A1 did not report the Incidents to the police.

8.  On 1 October 2015, A1 went to Mainland China.  From the Mainland, A1 came to Hong Kong to claim non-refoulement protection.  Her claim was not successful and she was refouled to Vietnam on 2 February 2016.

9.  After returning to Vietnam, A1 lived in a hostel in Hanoi to avoid the Lender until she came to Hong Kong again in November 2016.  When she was in Hanoi, the Lender would call A1’s parents or visit them to ask for the whereabouts of A1.  The Lender had also threatened the family members of A1’s husband.

10.  By a written representation dated 14 February 2017, A1 lodged her claim for non-refoulement protection.  On 15 June 2017, A1 gave birth to A2 in Hong Kong.  By a written representation dated 29 September 2017, A1, on behalf of A2, lodged A2’s non-refoulement claim.  Their claims together formed the Claim. 

11.  A1 claimed that the Lender would harm or even kill her and A2 upon their returning to Vietnam because she was unable to repay the Loan.

12.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

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

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

13.  By the DOI Decision, the Director refused the Claim.  The Applicants later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

14.  On 3 July 2019, the Applicants filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  A1 filed her supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicants named the Board as the proposed respondent and interested party.

15.  As A2 is a minor, by a letter dated 7 August 2024, the court asked A1 to seek legal assistance for A2 to represent A2 in these proceedings.  However, the court has to-date not received any notice of legal representation for A2. 

Legal principles applicable to judicial review

16.  In a judicial review, the court does not step into the shoes of the decision makers.

17.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

18.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

19.  The Applicants failed to attend the court hearing scheduled for 1 April 2025 (“Court Hearing”) despite notices of hearing dated 6 March 2025 having been sent to them and not being returned.  A1 had also failed to respond to another letter dated 7 August 2024 sent by the court to her inviting her to send her submissions to the court.  As such, I decided to deal with the Applicants’ application for leave for judicial review of the Board’s Decision according to the papers placed before the court.

20.  In this case, The Board applied ST v Betty Kwan & Ors [2014] 4 HKLRD 277 and held that the Appeal could be justly determined without a hearing under section 12 of Schedule 1A to the Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoluement Claims Petition Scheme.

21.  The Court of Appeal had noted in the ST case (supra) at §26 of the judgment that there was no absolute right to an oral hearing.  It was for the adjudicator, in the exercise of his discretion, to take the most effective and fairest way to approach the concern in question.  The Applicants raised no complaint in the Form 86 or the Supporting Affirmation for the Board disposing of the Appeal on papers and they did not attend the Court Hearing to raise any. 

22.  The Applicants did not put forward any grounds for their intended judicial review in the Form 86.

23.  In the Supporting Affirmation, A1 reiterated her claims and exhibited the Board’s Decision without other supporting documents.

24.  In §21 of the Board’s Decision, the Board noted that the Applicants had failed or neglected to obtain and adduce materials in support of the allegation of their claims and there was no objective support to show the existence of the Loan and the Incidents.

25.  In §§29-34 of the Board’s Decision, the Board discussed the Applicant’s evidence and came to the view that the harm, actual and perceived, from the Lender was not imminent and ill-treatment to A1 by the Lender, if any, had not attained a minimum level of severity.

26.  The Board was of the further view that the future risk as suggested by A1 was her own speculation only.  There was no indication that the Lender was public official or acting in any official capacity.  No political parties or organization nor the Vietnamese government was involved in the dispute between the Lender and A1.  It was at most a private money dispute only and it was A1’s volition not to take this matter to the police or other authorities in Vietnam instead of she had been refused assistance by the police or other authorities in Vietnam.

27.  The Board proceeded with the Appeal on the basis of the evidence adduced by the Applicant without raising any material factual disputes.  In §§49-57 of the Board’s Decision, the Board set out its findings of facts based on evidence adduced by A1.

28.  After considering the relevant country of origin information (“COI”), the Board found that internal relocation to other cities in Vietnam, was viable for the Applicants. (§§83-89 of the Board’s Decision)

29.  A2 is a minor.  She was about 2 years old when the Board issued the Board’s Decision on 24 June 2019.  A2’s case should be considered separately from A1’s case.  As A1 was the only person providing evidence in support of the Claim, A2’s claim depended a great deal on the sustainability of A1’s claim. The Board’s assessment of A1’s evidence was relevant to its assessment of A2’s claim. 

30.  Based on A1’s evidence, the Board found that there was no reliable evidence to show the existence of the Loan and the Incidents.  The alleged threats fell short of the required level of a genuine and substantial risk. The Board found that the Lender was a non-state actor and there was no evidence to show that the state of Vietnam was unwilling or unable to afford protection to the Applicants.  These findings applied to both A1 and A2.  Based on these findings, the Board found that both A1 and A2 had failed to establish the Claim under any of the applicable grounds under the USM. 

31.  I do not see any underlying matter that might support minor-specific non-refoulement grounds which had not been considered by the Board in making the aforesaid findings.

32.  In assessing the viability of internal relocation, the Board had in mind that A2 was a minor and had to depend on A1 in internal relocation.  In §87 of the Board Decision, the Board specifically stated that it was of the view that A1 would be able to reestablish herself with A2 in their home state or elsewhere in Vietnam.  The Board had in mind the minor-specific grounds for internal relocation of A2 when it assessed the same.  I am satisfied that the Board had achieved high standard of fairness in dealing with A2’s claim and there was no other underlying matter that might support minor-specific non-refoulement grounds which had not been considered by the Board.  There was no suggestion in the Form 86 or the Supporting Affirmation that the Board had overlooked any minor-specific non-refoulement grounds in dealing with the Claim and I find none. 

33.  No proper ground for the intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicants did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

34.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

35.  In §§59-82 and 90-93 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM. 

36.  The Board found that the evidence did not show that the feared persecution was, or would be, caused by one or more of the reasons referred to in the Refugees Convention.  There was nothing before the Board to indicate that, if refouled, the Applicants would not be afforded the requisite level of protection from the Vietnamese government.

37.  From the COI materials and all other relevant evidence, the Board found that there was nothing before the Board to indicate that, the Applicants would be at risk of harm contrary to BOR 2.

38.  The Applicants had not shown that the Vietnamese government failed to provide reasonable protection to them.  Thus, the Board found that the Applicants had failed to establish their claims under the BOR 3 risk.

39.  The Board held that the Lender was not a public official or other person acting in an official capacity and the Applicants had failed to show that the conduct of the Lender amount to torture as defined in section 37U(1) of the Ordinance.  The Applicant had also failed to show any evidence of acquiescence or failure of due diligence on the part of the Vietnamese government.  Thus, their claim under the torture risk also failed.

40.  It was on such basis that the Board found that the Applicants had failed to prove their entitlement to non-refoulement protection.  These were findings of fact exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

41.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicants’ intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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