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HCAL 2654/2019
[2025] HKCFI 2575
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2654 of 2019
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BETWEEN
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Nguyen Thi Huong |
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 |
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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:
1. Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be refused; and
2. 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 11 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 23 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 October 2017 (the “Notice”), refusing her application for non-refoulement protection. She named the Board and the Director as the proposed respondents, but did not name any proposed interested party. In view of the conclusion reached here under the Court did not consider it necessary to amended her Form 86 to correct the anomaly.
Late application
2. Under Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. As the leave application was filed three months and 20 days after the Decision sought to be reviewed was made, it was 20 days out of time. Leave to file the leave application out of time is required.
3. In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. The delay of 20 days is not substantial in the context of a three months’ period of application. Indulgence will usually be given if there are merits in the substantive application. Accordingly, the Court proceeds with consideration of merits of the leave application.
Background
4. The Applicant is a Vietnamese national. Between March 2001 and March 2012, she had entered Hong Kong lawfully from Mainland China once and then overstayed and sneaked into Hong Kong from Mainland China three times and then remained illegally. On each occasion, she committed theft or other immigration related offences. She was repatriated or deported on all four occasions.
5. On 31 July 2014, she sneaked into Hong Kong from Mainland China again by hiding under a truck. On the same day, she surrendered to the Immigration Department and raised a non-refoulement claim. In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. Her application 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.
The Applicant’s case
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that if returned to Vietnam, she will be harmed or killed by her creditor (“Thang”) because she was unable to repay the debt owed to him.
7. The Applicant, now aged 61, was born and raised in An Hai District, Hai Phong Province, Vietnam. She is married with one daughter. Her husband abandoned her and her daughter in around 2005. Her widowed mother and four siblings are living in Vietnam, and her daughter is living in Finland. She had received 11 years of formal education. She owned a tailor shop from 1998 to 2000, and worked intermittently as a tailor and a factory worker since 2000.
8. The Applicant claimed that in mid-1999, she agreed to help three of her friends to borrow money on their behalf from Thang so that her friends could start their businesses. She used her husband’s house and her business as collateral to obtain a loan of 70 taels of gold from Thang at a monthly interest rate of 7 taels of gold. She had to repay the principal by the end of 2000. Under the loan agreement, Thang would take her shop as compensation if she did not repay the loan on time. Her friends opened their own businesses in Hai Phong Province using the loan. They paid her interest for three months. In mid-2000, their businesses failed and they vanished. The Applicant assumed the burden of repaying the loan to Thang.
9. Towards the end of 2000, the Applicant defaulted on repayments. Thang sold her husband’s house for 100 taels of gold and took over her tailor business. After that, she still owed Thang six months’ interest amounting to 42 taels of gold. Despite that, Thang gave her 35 taels of gold to buy a smaller house in Van My for her to live in. To repay the debt, she agreed to work for Thang in Hong Kong and to follow his instructions. Thang arranged her to come to Hong Kong in 2001, but she was arrested before she could commence working for Thang. She was deported back to Vietnam in April 2001 after serving her sentence.
10. A week after her return to Vietnam, Thang and his four underlings went to her home to demand repayments. Upon hearing that she could not repay and refused to sell her house, one of Thang’s underlings stabbed her back with a knife. She bled profusely and fainted. She found herself in the Viet Tiep Hai Phong Hospital upon regaining consciousness. She learnt from her mother that she had undergone three operations and had been in coma for three days. She was hospitalized for a few months. Upon discharge from hospital, she went to the Phan Boi Chau Ward Police Station to file a complaint against Thang. The police told her that they would investigate. As there was no progress in the following week, she filed a petition by post to the Police Department of Hai Phong Province. She did not receive any response.
11. One day in around 2005, Thang armed with an iron pipe visited her home with the same group of underlings to demand repayments. She pleaded, but Thang still broke her right knee with the iron pipe. She screamed for help and her neighbour took her to the Viet Tiep Hai Phong Hospital. She was hospitalised for a few months.
12. After her discharge from hospital, Thang approached the Applicant at her home. After selling her house, she still owed Thang 70 taels of gold. She went to the Ngo Quyen Police Station to file a complaint against Thang. The police told her that they would investigate but there was also no progress.
13. A year later, she moved to Do Son District. In the end of 2007, she learnt that Thang had killed his brother because his brother failed to settle a loan from him. Worried about her own safety, she started shuffling between Hong Kong and Vietnam.
14. Upon her return to Vietnam in March 2012, her daughter, who was in Finland on scholarship since 2008, tried to apply for a visa for her so that they could reunite. Whilst waiting for her visa, Thang and his underlings went to her place of work in July 2014 demanding payment of 70 taels of gold. They told her to get the money from her daughter within a week and threatened to kill her if she failed to pay or ran away. The Applicant then fled Vietnam for Hong Kong via Mainland China in July 2014. Whilst in Hong Kong, she learnt from her mother that Thang visited her home to look for her from time to time.
15. She does not believe that the authorities and police in Vietnam could protect her because they are corrupt. She does not believe internal relocation would be viable, as Thang and his underlings could locate her throughout the whole country.
The finding of the Board
16. After reviewing the Applicant’s case, the Board found that no worthwhile and effective representation could be made and there would be no procedural unfairness to the Applicant if her appeal was determined without an oral hearing. It then proceeded to assessed the Applicant’s claim on the basis of the factual case as she asserted.
17. On her own account, the Applicant had been assaulted by Thang twice. On both occasions, she was alone and outnumbered. Thang and his underlings could have easily killed her, but they did not. Their conduct indicated that Thang had no real intention to execute the death threat on her. It was unlikely that Tang would kill the Applicant, as that would extinguish his source of repayment. The Board also found on the basis of the country of origin information (“COI”), that state protection is available in Vietnam (see below). For all these reasons, the Board came to the conclusions that the Applicant’s future risk of harm on her return to Vietnam would be small.
18. In respect of Torture Risk ground, the Board found there was no evidence that Thang was a public official or that any public or government officials or person acting in an official capacity were involved in inflicting the harm or ill-treatment on the Applicant. It therefore found that the ill-treatment suffered by the Applicant did not constitute ‘torture’ due to lack of involvement by government. For the same reasons (particularly those mentioned in paragraph 17), it found the Applicant failed to prove BOR 3 Risk ground.
19. The Board found that the dispute between the Applicant and Thang is a private matter and her fear of ill-treatment did not arise on account of race, religion, nationality, membership of a particular social group or political opinion (“Convention reasons”) for the purpose of proving Persecution Risk ground. It also found there was no evidence that she would be at risk of harm under BOR 2 Risk ground.
20. On the basis of the country of origin information (“COI”), the Board accepted that while there are police failures and corruption in Vietnam, there are objective indications that the Vietnamese government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police. The COI show there is a functioning government which is willing to and capable of protecting its citizens. It considered reasonable state protection would be available to the Applicant on her return to Vietnam. In addition, it found the Applicant’s source of harm is localized in her home area and that as an able-bodied person with over twenty years of working experience, she could reasonably relocate to different parts of Vietnam to avoid the perceived risks of harm from Thang.
21. In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant will face a real risk of any of the proscribed harm if refouled to Vietnam. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
22. 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[6].
Grounds for judicial review
23. The Applicant did not advance any grounds for judicial review in her Form 86. In her supporting affirmation, she merely stated that she did not agree with the Board’s Decision. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to Vietnam. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
24. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. Though the Board did not conduct an oral hearing, it assessed the Applicant’s claim on the basis of her case as she asserted. There was no procedural unfairness to the Applicant by the Board making the Decision without an oral hearing.
25. It was on the basis of the Applicant’s account of events that the Board found, inter alia, that Thang was not a public or government official, that her dispute with Thang was a private dispute, that her fear of harm did not arise on account of a Convention reason and that the harm is localized. It also found on the basis of authoritative, credible and independent COI that the state protection and internal relocation are viable options to avoid or reduce the risk of harm. Then, applying the law applicable to non-refoulement protection to those facts, it found there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of any of the proscribed harm if refouled to Vietnam. Hence, it found she is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. 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 proposed judicial review has no realistic prospect of success.
Conclusion
26. As the Applicant has not advanced any reasonable explanation for the delay and her leave application has no realistic prospect of success, extension of time for her to file her leave application is refused and her application for leave to apply for judicial review is also refused.
Dated the 19th day of June 2025
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(Seline Sze)
for Registrar, High Court
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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 19/06/2025
Nguyen Thi Huong
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 19/06/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12531/18/7/281/V2137
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2153/17 (Formerly RBCZ 3001563/14)(T8S105)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] CACV 63/2015 (unreported) 3 November 2015
[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap. 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap. 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[4] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383
[6] [2018] HKCA 524 at [14(1)]
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