NGUYEN THI TU ANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 779/2022

[2026] HKCFI 3367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 779 of 2022

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 the oral submissions of the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 17 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 19 July 2022 (the “Decision”) dismissing her appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”) refusing her application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is a Vietnamese national, now aged 60. She had received 12 years’ education. She had five years’ working experience as a factory worker and twenty-eight years’ experience as a hawker. On 25 May 2019, she was arrested by the police for remaining in Hong Kong illegally and referred to the Immigration Department. She claimed to have left Vietnam for Mainland China on 23 May 2019 and sneaked into Hong Kong on 25 May 2019. On 29 July 2019, she made a claim for non-refoulement protection by written signification. Her claim was rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.

3.  Her personal background, the factual background leading to the present application, the basis of her claim, 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. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, she claims, if returned to Vietnam, she will be harmed or killed by a moneylender for being unable to repay the loan she had borrowed from the moneylender.

4.  The Applicant’s case as advanced by her in her non-refoulement claim form (“NCF”) and record of her screening interview is as follows. In August 2018, she borrowed 600 million Vietnamese Dongs (“Dongs”) from a moneylender at a monthly interest of 30 million Dongs for a term of six months for the purpose of paying her father’s medical expenses. However, her father subsequently died of kidney disease in early April 2019. On 10 April 2019, four of the moneylender’s underlings demanded repayment of the loan and interest at her home. They were very fierce and threatened to beat her and kill her if she could not repay. Upon her pleading, they gave her one more week to pay and left. On 20 April 2019, five of the moneylender’s underlings came and demanded repayment. The Applicant could not pay. One of the underlings held a knife against her neck. They shouted at her in foul language and threatened to kill her. One of them pulled her hair and hit her head against the wall. The Applicant fainted. When she regained consciousness, she found she had a two inch long cut wound which was bleeding profusely. She called her friend for help. Her friend came, treated her wound and took the Applicant to her home on motorbike. She stayed in her friend’s home and recovered after seven days. Her friend also raised money for her stay in hostel. Eventually, she left Vietnam for Hong Kong.

The Board’s finding

5.  The Board seemingly assessed the Applicant’s claim on the basis of the case as she asserted. The Applicant was assaulted on one occasion only. Although she was injured on her head and fainted, when she regained consciousness she was able to travel on motorbike to her friend’s home. She recovered in seven days without any medical or surgical process and then survived a long and difficult journey to Hong Kong. The Board found the ill-treatment or injuries she suffered did not attain the minimum level of severity or the requisite level to amount to ‘torture’ under section 37U(1) of the Immigration Ordinance or persecution. It found no evidence that the ill-treatment was inflicted by any public official or person acting in an official capacity or with the consent or acquiescence of a public official or other person acting in an official capacity. It found the ill-treatment did not arise on account of any of the reasons enumerated in Article 1A(2) of the 1951 Convention relating to the status of refugees and its 1967 Protocol (“Convention reasons”). On the basis of independent and credible country of origin information (“COI”), it found adequate state protection is available and that she could avoid the risk of harm by internal relocation. It found that the moneylender’s interest was recovery of the loan and had no intention to kill her. It concluded that the Applicant had failed to show she had genuine and/or substantial risk of harm if refouled to Vietnam in the foreseeable future.

6.  Applying the law applicable to non-refoulement protection to the Applicant’s case as she asserted and the Board’s further finding, the Board found the Applicant had failed to discharge the burden of proving her entitlement to protection under any of the applicable grounds. Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

7.  The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

8.  At the hearing, after the legal principles applicable to judicial review had been explained to her, the Applicant confirmed that she had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements. However, she had advanced the following three grounds in her Form 86:

9.  First, she submits that if returned to Vietnam, her life will be seriously threatened. She will be tortured, beaten or even killed because the moneylender and his underlings in Vietnam are cruel and violent. They disregard the law and are willing to kill to satisfy their anger and ferocity. The Board had noted the Applicant’s fear in this regard in paragraph 68 of its Decision. Essentially, it found in view of the geographical size and population size of Vietnam, the risk that the Applicant would be located by the moneylender in big cities like Ho Chi Minh would be low. In addition, it found adequate state protection will be available in Vietnam on her return. These are finding of facts by the Board on the basis of authoritative and credible COI. This ground is therefore a direct challenge of the Board’s finding of fact which is impermissible, save for errors of law, procedural unfairness and irrationality in the Decision.

10.  Second, the Applicant disagrees with the Director’s suggestion that she could relocate to live in other locations to avoid the moneylender. For her benefit, the Court assumes that this complaint is directed at the Board. She submits internal relocation is not feasible because she could not find employment in the new location by reason of her health, personality, the fact that she is near her retirement age, and the disadvantage she would suffer in the labour market.

11.  These issues had not been raised by the Applicant in her NCF or testimony and she had not submitted any such evidence of ill-health, personality and her lack of competitiveness. As for her age, she may be near retirement age now. But she was not so near at the time of hearing before the Board four years ago. In any event, she is a Vietnamese, she would not be worse off than any locals of her age in Vietnam if she is returned to Vietnam and would not be better off than any locals in Hong Kong if she stays. Her age is just irrelevant.

12.  Lastly, the Applicant claims 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 her underlings to find her out and harm her. This is just an assertion based on the Applicant’s own speculation without any supporting evidence. Besides, as mentioned above, the Board had found adequate state protection is available in Vietnam.

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 and irrationality in the Decision.

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 Unified Screening Mechanism (“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 made some further finding of facts based on the evidence on her account, such as that the ill-treatment and injuries she suffered did not attain the minimum level of severity, that the moneylender had no intention to kill her, that the government or its officials were not involved in inflicting the ill-treatment and injuries on her and that the ill-treatment she suffered were not on account of a Convention reason; and on the basis of the COI, such as that adequate state protection is available in Vietnam. Then, applying the law applicable to non-refoulement protection to the Applicant’s case and the further finding of fact, it found the Applicant had failed to establish the factual basis to support her claim to protection under any of the applicable grounds under the USM. These are mixed finding 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

15.  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