DO THI NGOAN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1556/2020

[2026] HKCFI 1155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1556 OF 2020

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the 1st Applicant in open court;

Leave for the 1^st and 2^nd Applicants (“the Applicants”) to apply for

Judicial Review be refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 37-year-old national of Vietnam who had previously in 2017 and 2018 entered Hong Kong illegally, and upon her arrest by the police she then raised a non-refoulement claim for protection from being harmed or killed by her creditor over her unpaid debts but which she subsequently withdrew and was repatriated to Vietnam on both occasions, but several months after her last repatriation she on 9 November 2018 sneaked back into Hong Kong and again raised the same non-refoulement claim for protection as before that if she returned to Vietnam she would be harmed or killed by her creditor over her still outstanding debts, and 3 months later on 11 February 2019 after giving birth to a son, the 2^nd Applicant (“A2”) in Hong Kong, she also raised a non-refoulement claim on his behalf based on her own claim.

2.  A1 was born and raised in Yen Cu, Dai Yen, Ha Long, Quang Ninh Province, Vietnam. After leaving school she married her husband, raised a family with a daughter in her home district, and together with her husband ran a stall in the town market selling cloths to support their family.

3.  In 2016, for the purpose of expanding their business she and her husband borrowed a loan from some local money-lender to be repaid within 6 months and with monthly interests payments which they initially managed to make from their business income.

4.  However, their business did not fare well, and by 2017 when they defaulted with their loan repayment, their creditor started to send men to threaten them, and after being beaten by those men on several occasions, her husband in March 2017 fled from their home and disappeared without news, while A1 later also fled to Cao Bang City to hide from the creditor, and on 24 October 2017 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and after she was arrested by police she then raised her non-refoulement claim which she subsequently withdrew and was repatriated to Vietnam on 28 December 2017.

5.  Upon returning to Vietnam A1 was afraid to return to her home and therefore stayed in Cao Bang City, but one day in January 2018 she was grabbed by 2 men sent by her creditor who beat her violently, and before they left they warned her that next time they would kill her if she still failed to repay the loan, and so shortly thereafter she departed Vietnam again for China and then sneaked into Hong Kong, and upon her arrest by the police she again raised her non-refoulement claim which she again on 13 March 2018 withdrew when she confirmed that her issue with her creditor had been resolved, and was repatriated to Vietnam on the same day.

6.  Upon returning to Vietnam A1 managed to contact her husband and together they returned to their home in Quang Ninh, but shortly thereafter their creditor’s followers came to beat her husband violently before they grabbed A1 and brought her to some empty building where she was beaten and raped by some of those men which eventually led to her becoming pregnant, and some 6 months later one night she managed to make her escape from the place, and while wandering in some unknown area she met some sympathetic stranger who gave her money to help her to leave the country, which she did on 8 November 2019 when she again departed for China, and from there she again sneaked into Hong Kong, and upon her arrest by the police she then again raised her non-refoulement claim for protection for herself and subsequently for A2 after giving birth to him in Hong Kong, and for which she completed a Non-refoulement Claim Form (“NCF”) on 15 May 2019 jointly for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 27 June 2019, the Director of Immigration (“Director”) rejected the claims of the Applicants on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision, the Director took into account of all the relevant circumstances of the claims of both Applicants and doubted the credibility of their claims due to numerous material inconsistencies and discrepancies in A1’s evidence that it is not accepted as credible that she had ever borrowed any loan or threatened by any creditor or attacked abducted or raped by any men sent by her creditor that caused her to leave her country on 3 occasions to come to Hong Kong to seek protection, that even if her account of events prior to her departure of Vietnam were true that there the level of risk of harm from her creditor and followers upon her return to Vietnam is assessed as low due to the low intensity and frequency of past ill-treatment from them, nor is there any evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to both Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 97 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other areas of the country away from her home district in large cities such as Hanoi or Ho Vhi Minh City where it would be difficult if not impossible for her creditor to locate them.

9.  On 8 July 2019, the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which A1 attended an oral hearing on 5 March 2020 before the Board during which she gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 27 May 2020 their appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1], the Board found material inconsistencies discrepancies and contradictions in A1’s evidence and of which she was unable to explain or clarify at the hearing that it rejected the credibility of her claim of fear of harm from any creditor over any debts that caused her to leave her country on 3 occasions to come to Hong Kong to seek protection, that her claim of being abducted and locked in a room for some 6 months during which she was fed and cleaned and raped but managed to make her escape after 6 months without having repaid her debts were incredible implausible and illogical, nor is it credible that after escaping from her creditor that she ran into a passerby who would offer her money and help to enable her to leave the country for the third time to come to Hong Kong when she also happened to have her passport with her despite having been abducted and detained for 6 months by her creditor’s followers and without any future plan after arriving in Hong Kong and instead just wandered in the street for another 2 months before somehow by chance running into her own countrymen to help her to seek non-refoulement protection when the fact is that she already in her 2 previous trips to Hong Kong had had ample experience in making similar claims to the Immigration Department by herself, and that while she asserted in her claim that A2 was born as a result of her being raped by one of her creditor’s followers which however contradicted her earlier statement that the A2’s father is in fact her boyfriend when she registered his birth to the relevant department that the Board concluded that A1 had wholly and entirely fabricated her claim for the purpose of seeking non-refoulement protection for herself and her son, and that even if her account of events prior to her last departure of Vietnam were true that her alleged risk arose from some private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to her and her son upon their return to Vietnam as well as reasonable internal relocation alternatives for A1 to move safely with A2 to other parts of the country away from her home district without any risk of being located by anyone that their claims for non-refoulement protection failed on all applicable grounds.

11.  On 23 July 2020, the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for their intended challenge, nor was she able to do so at the hearing of their application. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge of the Board’s decision.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicants’ cases, the Board rejected their claims essentially on its adverse finding on A1’s credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for them to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in the Applicants’ claims even if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claims.

16.  I am of course mindful of the fact that A2 being a minor at his present age of just 7 years old was without legal representation in his appeal before the Board, nor for that matter in his present leave application for judicial review as required by Order 80 rule 2 of the Rules of the High Court, Cap. 4A, and hence it would be necessary to consider and examine whether his non-refoulement claim had been properly assessed and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are underlying matters that may support his potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in his appeal before the Board, as held by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from their parents’ claims and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

17.  The case of Fabio Arlyn Timogan however is not authority for the proposition that any decision of the Board in relation to children claimants of tender age must be quashed if they were not legally represented, as the same Court of Appeal in the subsequent case of Re Jasvir [2021] HKCA 53 elaborated as follows:

  “31. … when dealing with a non-represented minor’s judicial review application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] – [54].

  32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See Fabio Arlyn Timogan at [50] – [53], [56] – [57].

  33. … on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

18.  In the present case of A2, as noted above that his claim was premised fundamentally on his mother’s claim that he would be harmed or killed by her creditor over her unpaid debts, but of which the Board after considering the evidence of his mother A1 disbelieved her and rejected that there has ever been any loan borrowed by her from any creditor that she had been threatened or attacked or raped by any men sent by the creditor that caused her to leave her country no less than 3 occasions to come to Hong Kong to seek protection, or that any threats have ever been made against A2 when he was not even born at that time, and in doing so the Board had effectively and specifically considered and determined the case made in support of the claims of both A1 and A2 individually and rejected each of them in the way as they were advanced, and having scrutinizing the evidence of their case including the fact that A2 was born to both Vietnamese parents and hence also a national and citizen of Vietnam as found by the Board, I do not find any material that may give rise to any concern that there may be any non-refoulement ground that relate specifically to A2 but had not been advanced to the Board or considered by it due to lack of legal representation for him before the Board, and hence I do not find any reasonably arguable basis for his intended challenge of the Board’s decision, and accordingly I shall treat the absence of legal representation for him in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review. See Re Jasvir Singh at [34] – [38].

19.  In the premises, and for all these reasons I am not satisfied that there is any prospect of success in the intended application for judicial review of either Applicants, I therefore refuse to grant leave and accordingly dismiss their application.

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