TRAN THI DAO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1988/2023

[2025] HKCFI 4213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1988 of 2023

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 oral submissions by the Applicant in open court;

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 6 November 2023 for leave to apply for judicial review (the “leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 March 2020, refusing her application for non-refoulement protection.  

2.  The Applicant is a Vietnamese national, now aged 40.  Her personal background, the factual background leading to the present application, the basis of her claim and the arguments he 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 that if returned to Vietnam, she would be harmed or killed by a creditor because of her inability to repay an outstanding loan.  

3.  The Board assessed the Applicant’s claim on the basis of her case as she asserted.  The injuries suffered by the Applicant at the hands of her creditor on all five occasions were minor injuries short of attaining a minimum level of severity.  Hence, the Board found the creditor’s purpose of harassing her was to recover his debt rather than inflicting serious harm on her or killing her.  It found that the Applicant’s feared harm and risk of harm arose of out a purely private monetary dispute with her creditor and not out of a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  It found the ill-treatment inflicted on the Applicant in the past and to be inflicted in the future lacks involvement, active or otherwise, by a public official or other person acting in an official capacity and does not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance.  

4.  The Board accepted that corruption in Vietnam is rampant at all levels of the government and the police and that law enforcement is ineffective, on the basis of authoritative and credible country of origin information (“COI”), it found the Vietnamese government has taken steps to combat corruption, improve efficiency and professionalism in the police and crack down on illegal debt collection activities.  On balance, the Board is satisfied that reasonable state protection would be available to the Applicant on her return to Vietnam. 

5.  Applying the law applicable to non-refoulement protection, the Board found the Applicant had failed to establish the factual basis to support her claim for non‑refoulement protection under any of the applicable grounds under the Unified Screening Mechanism.  Hence, it dismissed her appeal against the Notice.

Grounds for judicial review

6.  At the hearing, after the legal principles applicable to judicial review was explained to the Applicant, she confirmed that she had no complaint about errors of law, procedural unfairness or irrationality in the Decision. However, she had advanced the following grounds of application in the Form 86:

(1)   the decisions of the Board and the Director are wrong, unreasonable and unfair;

(2)   the Director failed to give proper weightage to the presence of state acquiescence;

(3)   the Board acted unreasonably and procedurally unfairly by placing too much reliance on COI but failed to take her personal background and experience into account;

(4)   the Board was procedurally improper or unfair when assessing whether to accept her explanations, and unreasonably required her to respond to questions that she was not in a position to offer any response;

(5)   the Director acted unfairly by failing to take such argument into account and failed to give enough weight to such argument before reaching the Decision; and

(6)   the Board ought to have allowed her appeal. 

7.  The Court is familiar with these grounds which appear to be template grounds used in some other applications and have no bearing to the facts of this leave applications.  Some of these grounds are directed at the Board, some at the Director and some at both the Board and the Director.  For the benefit of the Applicant, it is assumed that they are all directed at both the Board and the Director.  In view of her admission that she had no complaints about error of law, procedural unfairness and irrationality, Grounds (1), (3), (4) and (5) are deemed to be withdrawn.  Ground (2) is not engaged as the Applicant had adduced no evidence of state acquiescence at all.  The Court shall explore her Ground (6) in its overall scrutiny of the Decision.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision and the Director’s Decision sought to be reviewed. 

8.  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 assessed the Applicant’s claim on the basis of the case as she asserted. It analysed the primary evidence carefully and tested it against common sense and inherent probability.  From the primary evidence, it made further finding of fact as stated in paragraphs 3 and 4 above.  It gave reasons for its finding. Then, applying the law applicable to non-refoulement protection to its finding of fact, the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds.  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 his burden of proving his fears and risks of harm.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

9.  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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001988_2023_files/the_Board's_Decision.pdf