CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 568 of 2022
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BETWEEN
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Pham Thi Quyen |
Applicant |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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Director of Immigration |
Putative |
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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 Applicant’s application by Form 86 filed on 5 July 2022 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 21 June 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 July 2021 (the “Notice”) refusing her application for non-refoulement protection.
2. The Applicant had requested an oral hearing. A hearing on 2 March 2026 was scheduled for her and Notice of Hearing was sent to her by post on 12 February 2026 to her address as stated in her Form 86 which was confirmed by the Immigration Department as her up-to-date address on 6 February 2026. The notice has not been returned through the post. The Applicant had never informed the court of any change of address since filing her Form 86. There is nothing to suggest that she had not received the notice or had moved. An attempt had been made on the afternoon of 27 February 2026 to contact her by telephone on the two telephone numbers provided by the Immigration Department to remind her of the hearing. The call was not answered. The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to her notice. The Applicant did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
3. The Applicant is a Vietnamese national, aged 39. She was arrested by the police on 2 October 2020 suspected to have entered Hong Kong illegally. Then, she lodged a non-refoulement claim by written signification on 19 October 2020, claiming to have sneaked into Hong Kong on 3 September 2020. Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”) and rejected by the Director. Her appeal against the Director’s decision was dismissed by the Board. She now applies for leave to apply for judicial review of the Board’s Decision.
The Applicant’s case
4. The Applicant’s personal background, the factual background leading to the present application, the basis of her claim and 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 here. The hyperlink to the Board’s Decision is included below [1] for reference. In gist, she claims she will be harmed or killed by a moneylender for being unable to repay her loan owed to the moneylender.
5. In her non-refoulement claim form (“NCF”), the Applicant claimed to have borrowed 200 million Vietnamese Dong (“VND”) from a moneylender in July 2019 at a monthly interest of VND 10 million for a term up to December 2020 for her seafood business. She suffered a great loss since October 2019 because some of her suppliers failed to supply seafood to her despite she had paid the purchase money. She could not pay monthly interest to the moneylender. Since October 2019, the moneylender’s underlings visited her once every two months to demand payment and to threaten to kill her. They slapped her face once during the four visits. Prior to the ultimate deadline for repayment the Applicant fled to Hong Kong before August 2020.
The finding of the Board
6. The Board seemingly accepted the Applicant’s evidence and assessed her claim on the basis of the case as she asserted. It found the moneylender and his underlings were non-state actors; the moneylender’s threat arose from his private monetary dispute with the Applicant; the Applicant suffered minor physical injuries which fell short of the requisite severity[2]; the threats fell short of the required level of a genuine and substantial risk; that no public officials or persons able to wield the authority of the government and/or state had any connection with the claim or acquiesced in the ill-treatment of the Applicant, that the moneylender and his underlings had not ill-treated the Applicant with an intention listed in the section 37U(1) of the Immigration Ordinance; that the ill-treatment of the Applicant had any relevance to the interest and/or benefit of the government of Vietnam, that the Applicant had a well-founded fear of persecution for one or more of the reasons enumerated in Article 1A(2) of the 1951 Convention relating to the status of refugees and its 1967 Protocol (the “Convention reasons”); that the Vietnamese government was unable to afford protection to the Applicant or unwilling to help her for a Convention reason or any other reason; and that Applicant had never sought protection from the state.
7. Applying the law applicable to non-refoulement protection to the Applicant’s asserted case and the further finding of the Board, the Board found the Applicant had failed to discharge the burden of proving her entitlement to protection under any of the applicable grounds. Hence, the Board dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
8. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration [3].
Grounds for judicial review
9. The Applicant had advanced the following three grounds in her Form 86. The Court has repeatedly seen such grounds of application in leave applications filed by Vietnamese claimants. These grounds are lacking in particulars. It appears that these are format grounds adopted by claimants which may have no bearing to their case.
10. First, the Applicant argued that if returned to Vietnam, her life will be seriously threatened. She will be tortured, beaten or even killed because the gangsters in Vietnam are cruel and violent. The gangsters disregarded the law and were willing to kill to satisfy their anger and ferocity. This is a direct challenge of the Board’s finding of fact that her life would not be at risk of any of the proscribed harm, if returned to Vietnam. That is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision.
11. Second, she disagreed with the Director’s suggestion that she could relocate to other location to avoid the gangsters because of her health, personality and the disadvantage she would suffer in the labour market. For her benefit, the Court assumed that this complaint is directed at the Board. The Board did not make any such finding. As indicated in paragraph 90 of the Decision, the Applicant’s health and personal issues had not been advanced before the Board. Having regard to the country of origin information of Vietnam and Applicant’s evidence, the Board held in paragraph 92 of its Decision that it would not be unduly harsh for the Applicant to relocate to other cities of Vietnam to avoid the risk of harm from her moneylender. Therefore, it held the Applicant had failed to substantiate her claim that she would be at risk returning to Vietnam. That is also a finding of fact solely for the Board, which the court in a judicial review will not intervene, save for errors of law, procedural unfairness and irrationality in the Decision.
12. Lastly, the Applicant claimed 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 gangsters to find her and harm her. The Applicant had not advanced any such evidence. As was mentioned in the preceding paragraph, the Board found as a fact that she had failed to substantiate her claim that she would be at risk returning to Vietnam. This is a finding of fact for the Board.
13. 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 or irrationality in the Decision sought to be reviewed.
Overall scrutiny
14. 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.
15. The Board seemingly accepted the Applicant’s evidence. It also made further finding of facts based on her case and the country of origin information (“COI”). It gave full reasons for its further finding. Then, applying the law applicable to non-refoulement protection under the USM to the Applicant’s case as she asserted, the Board’s further finding of fact and the COI, it found the Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the USM. These 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 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
16. For the above reasons, the Applicant’s leave application is refused.
Dated the 27th day of March 2026
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(Seline Sze)
for Registrar, High Court
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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
a) 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 27/03/2026
Pham Thi Quyen
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 27/03/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18450/21/8/38/V2966
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 845/21 (Formerly RBCZ 249/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000568_2022_files/the_Board's_Decision.pdf
[2] In paragraph 53 of the Decision, the Board held, “The [Applicant] had suffered minor physical injuries only … and of the requisite severity. Those threats would fall short of the required level of a genuine and substantial risk for reasons already given.” According to paragraph 35 of the Decision, the injuries suffered was one slap on the face for which the [Applicant] had suffered minor injuries and recovered after a week by applying some ointment herself without any medical consultation. In that context and in the context of the entire Decision, the Board must have meant the Applicant suffered injuries which ‘fell short of’ or ‘was not of’ the requisite severity.”
[3] [2018] BKCA 524 at [14(1)]