DINH THI THUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2970/2019

[2025] HKCFI 2360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2970 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 6 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 16 April 2025. I shall deal with her application on the papers.

The applicant

3.  The applicant, aged 61, is a national of Vietnam. She arrived in Hong Kong illegally on 12 September 2015 and was arrested by police on 15 September 2015. In due course, she lodged her non-refoulement claim.

4.  The applicant’s claim was based on her fear of being harmed or killed by two creditors because of her inability to repay a debt and because they were connected with triads.

5.  According to the applicant, the applicant failed to repay her debt totalling VND 500 million. The applicant outlined 2 incidents where she had suffered from threats as she was unable to repay her debts, and was assaulted by having her hair pulled and being slapped. She also heard from her husband that the creditors damaged the furniture at her house and uttered death threats. Details of her claim are set out in Chinese at paragraph 6 of the Notice of Decision dated May 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: past ill-treatment from the creditor never showed any real intention to cause any serious harm or even kill the applicant or materialize their threat [11-14]; state protection was available [15-20]; and internal relocation alternatives were available and reasonable [21-31].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 18 July 2019, the Board conducted an oral hearing for her appeal, during which the applicant failed to attend [4.1].

9.  Having considered the evidence, the Board inferred dishonesty from the fact that the applicant sneaked illegally into Hong Kong and the applicant’s story was vague and problematic [6]. In any event, having reviewed the various Country of Origin Information, the Board was satisfied that it would not unreasonable or unduly harsh for the applicant to internally relocate [18-22]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

10.  For the above reasons, the Board dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant filed Form 86 on 9 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for her application.

12.  In the applicant’s affirmation in support of her application, the applicant exhibited the Board’s Decision but again did not put forth any grounds.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI 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.”

16.  The applicant has raised no valid ground to challenge the Board’s Decision.

17.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.