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HCAL 91/2020
[2025] HKCFI 1254
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 91 OF 2020
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BETWEEN
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Doan Thi Thuy Hang |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, “Director of Immigration” be added as the putative interested party.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 9 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 31 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000091_2020_files/the_Board's_Decision.pdf
2. The Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 February 2019, as the applicant had failed to demonstrate that she was entitled to non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). The Board also confirmed the Director’s said decision.
Amendment
3. In Form 86, the applicant did not name any putative interested party when the Director should be the putative interested party. Thus, on this court’s own motion, “Director of Immigration” is added as the putative interested party.
The applicant’s case
4. The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-
(1) The applicant is a female Vietnam national and studied account at university, whereas her husband studied law at university. They were married in 2004 after graduation from university.
(2) The applicant’s husband indulged in gambling and had drug addiction. In 2006, the husband owed VND 1,000 million to 10 creditors and forced the applicant to borrow VND 300 million from a moneylender.
(3) The applicant claimed that she feared harm from the moneylender because of her inability to repay the debt. The moneylender had harmed her physically on many occasions, forced her to work as a prostitute, and threatened to kill her before she left Vietnam.
(4) In order to avoid further ill-treatment by the moneylender, the applicant came to Hong Kong by air in December 2008 as a visitor for about two weeks. During this period, she went to Macau for a day, and did not apply for non-refoulement protection in Hong Kong. She flew back to Vietnam after this period.
(5) In November 2013, the applicant came to Hong Kong by air as a visitor again. She left Hong Kong to mainland China for one day and returned to Hong Kong on 5 December 2013. She was permitted to stay as a visitor until 12 December 2013, but she overstayed for about 3 years.
(6) In March 2016, the applicant was arrested by the Hong Kong police for overstaying, and she applied for non-refoulement protection in the same month.
(7) The Director rejected the applicant’s claims on 27 February 2019 and the applicant lodged an appeal/a petition against that decision on 7 March 2019. As aforesaid, the Director’s decision was confirmed by the Board’s Decision.
Grounds for judicial review
5. The applicant is required to identify clearly the grounds for her intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
6. However, the applicant did not advance any ground for her intended judicial review in Form 86 nor in her supporting affirmation dated 9 January 2020. She merely stated in her affirmation that she does not agree with the Board’s Decision.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application and her case was heard on 11 March 2025.
8. At the hearing, the applicant said that she wants to stay in Hong Kong because her problems in Vietnam have not been resolved. Her mother, whom she relied on to resolve her problems in Vietnam, is now in Hong Kong staying in an elderly home. The applicant said that she is required to stay in Hong Kong to take care of her mother and to apply for government subsidy for the fees charged by the elderly home.
9. Apart from the above, the applicant had nothing further to supplement.
Discussion
10. 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 [2018] HKCA 524).
11. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.
12. The applicant’s mere claim that her problems have not been resolved cannot amount to a valid ground for the intended judicial review, as the Board had already assessed the risks arising from her alleged problems in Vietnam.
13. The applicant’s need to stay in Hong Kong to take care of her mother is totally irrelevant to her claim for non-refoulement protection.
14. Thus, the applicant has not raised any valid ground for the intended judicial review. Nevertheless, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities.
15. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 29 November 2019 and adopted the approach of a re-hearing. The applicant was present and was given the chance to present her case and grounds of appeal to the Board in person.
16. The Board found that there were significant inconsistencies in many aspects of her evidence. For example, there were inconsistencies in respect of: (1) the purpose of borrowing money from the moneylender; (2) her husband’s behavior; (3) the terms of the loan agreement; (4) the loan amount and the interest; (5) who borrowed the money; (6) who took out the title deeds as security for the loan; (7) the price of the house of the applicant’s mother; and (8) the income of the applicant and her husband.
17. The Board also found the applicant’s evidence implausible in many aspects, such as: (1) the husband’s parents could refuse to sell their house when the moneylender had the title deeds already; (2) the applicant reported her assault by the moneylender in Quang Ninh to the police in Hai Phong on the same day when the two cities are 200 km apart; (3) the applicant went back to Vietnam voluntarily in 2008; (4) the applicant stayed on the street in Hong Kong for 3 years; (5) the applicant had money to go to the Mainland and Macau in 2008 and 2013; (6) the applicant did not apply for non-refoulement protection at the earliest opportunity or delayed in making such application; (7) the applicant could insist not becoming prostitute or drug trafficker when the moneylender could endanger her life or seriously harm her; (8) the applicant could get such a huge amount of loan in view of her background, work experience and past income; and (9) the applicant and her husband could pay huge amounts of interest to the moneylender.
18. In sum, the Board found that the discrepancies and implausibility of the applicant’s story were fatal and the centerpiece of her story could not stand.
19. In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information for the applicant’s country from different sources. The Board considered that the applicant should be able to obtain assistance from the police and authorities if she needed it. Further, the Board did not find any evidence to show that the alleged moneylender was powerful and influential. The applicant who had received university education with plenty of work experience could safely relocate to other places within Vietnam without undue hardship.
20. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.
21. The Board also re-assessed the applicant’s claims on all the applicable grounds under the USM, namely:-
a. risk of torture under Part VIIC of the Immigration Ordinance;
b. risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;
c. risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and
d. risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
22. After due consideration of the law and the evidence as presented by the applicant, the Board found the applicant was not a witness of truth and her evidence relating to the facts on which her claims were based was questionable and unreliable. The Board concluded that her claim about her or her husband’s borrowing money was fabrication. Thus, her claims about the alleged harm and ill-treatment from the moneylender were also fabrication, and she was not entitled to non-refoulement protection under any of the aforesaid applicable grounds.
23. Having rigorously examined the Board’s Decision 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 applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.
24. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.
Conclusion
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 10th day of April 2025
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( Thomas Chan )
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 his 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/Handed to the applicant/the applicant’s solicitors
on: 10/4/2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 10/4/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15656/19/3/21/V2262
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 69/19 (Formerly
RBCZ/11004/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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