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HCAL 1274/2021
[2025] HKCFI 4552
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1274 of 2021
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Vu Thi Thuy |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative 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 10 September 2021 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”) dated 2 September 2021 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 April 2021 (the “2021 Notice”), refusing her application for non-refoulement protection.
2. The Applicant is a Vietnamese national. Her 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 that if returned to Vietnam, she will be harmed or killed by a loan shark for being unable to repay a loan borrowed from him.
3. The Applicant used to be a worker in a shoe factory between 2004 and 2009 and then a housewife until 2016. She was persuaded by her good friend (“her friend”) to start a pig farm with each contributing 800 million Vietnamese Dong (“VND”) as capital. She borrowed 400 million from the loan shark in about August 2016 and another 400 million VND in October 2016 at a total monthly interest of 20 million VND, ie 30% per annum. Her pig farm perished under a swine flu in mid-2017 and she was unable to repay the loan and interest. She was assaulted and threatened by the loan shark. She fled to Mainland China in 2018 and then sneaked into Hong Kong on 27 February 2018. She was arrested by the police and then removed back to Vietnam on 18 June 2019. After she was returned to Vietnam, the loan shark threatened her at home, but did not harm her. Then she left Vietnam for Mainland China and sneaked into Hong Kong a second time in September 2020. She was arrested for using a false instrument and taking up illegal employment. On 20 January 2021, she made a non-refoulement claim by written submission. Her claim was rejected by the Director’s 2021 Notice. Her appeal against the Director’s decision in the 2021 Notice was dismissed by the Board’s Decision. She now seeks leave to apply for judicial review of that Decision.
4. The Applicant testified before the Board. The Board found her evidence minimalistic and made up of bald assertions. She and her friend had no experience running a pig farm. She knew little about her friend and her experience. In the circumstances, the Board found it implausible that she would have committed herself into starting a pig farm with her friend without enquiring about her friend’s previous working experience and ascertaining whether she had the necessary know-how to run a pig farm. It found her evidence about the interest rate of 30% per annum charged by the loan shark far out of line with the exorbitant rate of 180% per annum reported in the country of origin information (“COI”). She repeatedly evaded giving a response as to why the loan shark gave her such a preferential rate. As she had left Vietnam to evade payment, the Board considered it implausible that the loan shark would have soften his approach in enforcing payment after her return to Vietnam by not assaulting her.
5. The Applicant was aware of availability of non-refoulement protection in Hong Kong. Yet she did not seek protection during her first stay in Hong Kong between February 2018 and June 2019. Her explanation was that she returned because she missed her mother in Vietnam. The Board rejected her explanation as it found it implausible that she would have refrained from making a non-refoulement claim and opted to be returned to Vietnam where she would be at risk of harm, if her asserted danger posed by the loan shark were real.
6. The Board found the Applicant inconsistent, evasive and not forthcoming in her testimony. It found her to be an incredible witness and the core elements of her claim lacked credence. It found her friend and the loan shark are fictitious and her case is concocted. She was never under any threat or danger while in Vietnam and will not be subject to any risk of harm if returned in the future. The Board found she is not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”). Though unnecessary for its Decision, the Board found reasonable state protection would be accessible to the Applicant on her return to Vietnam and that she could avoid the harm and risk of harm, if real, by internal relocation. Hence, it dismissed the Applicant’s appeal against the 2021 Notice.
Grounds for judicial review
7. The Applicant did not advance any grounds of application for judicial review in her Form 86. In her supporting affirmation, she only reiterated her feared harm and risk of harm. In effect, she is seeking to challenge the Board’s finding of fact that she will not be subject to any risk of harm if returned to Vietnam. This is impermissible save for errors of law, procedural unfairness or irrationality in the Decision. At the hearing, after the legal principles applicable to judicial review was explained to the Applicant, she confirmed she had no complaint about errors of law, procedural unfairness or irrationality in 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 sought to be reviewed.
Overall scrutiny
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 analysed the primary evidence carefully and tested it against common sense, inherent probability and authoritative and credible COI. It found the Applicant an incredible witness and rejected her evidence on the core elements of her claim. It gave detailed 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 her 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 had failed to discharge her burden of proving her 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.
Dated the 30th day of September 2025
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(Seline Sze) |
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for Registrar, High Court |
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
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 30/09/2025
Vu Thi Thuy
Applicant’s ref. no: |
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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 30/09/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17923/21/5/36/V2840
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 163/21 (Formerly RBCZ 10101/21)
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/2021/HCAL001274_2021_files/the_Board's_Decision.pdf
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