DO THI LUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2332/2019

[2025] HKCFI 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2332 of 2019

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 oral submissions by the Applicant in open court;

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 13 August 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 8 August 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 March 2017 (the “Notice”), refusing her non-refoulement application.

Background

2.  The Applicant is a Vietnamese national.  She surrendered to the Immigration Department on 2 July 2015 claiming to have entered Hong Kong illegally on 27 June 2015.  She made a claim for non-refoulement protection on the same day.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4].  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

3.  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 she will be harmed or killed by her husband’s creditor (the “creditor”) and his associates, if returned to Vietnam, for being unable to repay her husband’s loan owed to the creditor.  

4.  The Applicant, now aged 48, was born in Huyen Thuy Nguyen, Hai Phong, Vietnam.  She had received five years’ formal education and had four years’ experience working as a farmer.  She is widowed with two sons. Her parents, two siblings and two sons are living in Vietnam.

5.  She worked as a famer until she married her husband in 1994.  Then, she assisted him in his seafood business.  In order to expand his business, her husband borrowed six billion Vietnamese Dong from the creditor.  The Applicant did not know anything else about the loan, including the term, interest rate and repayment terms, etc.  His business failed and he could not repay his loan.

6.  In July 2013, the creditor and his associates demanded repayment and threatened to assault her husband and the Applicant if the loan was not settled.  Then, they left without causing the Applicant and her husband any harm. 

7.  The creditor and his associates came to collect payment on four other occasions.  The Applicant was not at home.  Her husband told her that the creditor had threatened to kill him if he could not repay.  They did not report the threat to the police as they believed it was a personal matter.  

8.  On 10 September 2014, her husband was assaulted to death on the street.  The Applicant was traumatised.  Her husband’s family reported the death to the police, but no arrest was made.

9.  One day in 2015, an unknown person arrived at the Applicant’s home, claiming to be sent by the creditor. He told her that she was now responsible for her husband’s debt and threatened to rape her, if the loan was not settled. He left without harming her. The Applicant did not report the threat to the police as she thought it was a private matter. She thought state protection was not available as her dispute with the creditor is a private debt dispute. She did not consider relocation within Vietnam feasible as the creditor could locate her anywhere in Vietnam. Out of fear, she fled to Mainland China and then sneaked into Hong Kong.

10.  While in Hong Kong, the Applicant maintained contact with her sons.  They did not mention anything about debt collection by the creditor.   

The finding of the Board

11.   The Applicant testified before the Board. Her case is based solely on her bare assertions, without any supporting evidence, documentary or otherwise. The Board found her description about the loan very vague, brief and lacking in particulars. It found it incredible that having helped her husband run his business for almost twenty years, she would not have asked him about the particulars of the loan. The collection efforts described by her were far apart in time. It commenced in July 2013 with five collections with verbal threats only and then the sudden killing of her husband in September 2014, fifteen months after the first collection effort. Then suddenly nine months later, she was threatened with rape. The Board considered her evidence about these collection efforts was vague and her demeanour evasive. The Board thought it incredible that if the creditor was keen to press her husband for repayment, he would not have done nothing in between those collection actions or would not have escalated the violence before killing her husband in September 2014. Judging from the low level of violence of the creditor and his associates, the Board found it implausible that the creditor would have killed her husband in September 2014 without any prior warnings or would not have harassed her before threatening to rape her in 2015.

12.  The Board found it implausible that the Applicant would have decided to flee her home country after just one incident of oral threat to rape her, if such threat had actually been delivered, before even attempting to report the threat to the police. It rejected her explanation for not seeking police protection based on their inaction as speculative and her fear that her creditor would still be interested in locating her after three years unreal. On the basis of authoritative and credible country of origin information, the Board found state protection and internal relocation are viable options to avoid or mitigate the risk of harm, even if the risk were real

13.  Having regard to the number, nature and seriousness of the inconsistencies and implausibilities in her evidence, the Board was not convinced that the Applicant had suffered any physical or mental suffering as she alleged, and that the creditor and his associates are still chasing her all over her home country and even wanted to harm her. The Board considered the centerpiece of her story could not stand. It found she is a dishonest and unreliable witness and is not a genuine claimant. It found she had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. However, the Board also assessed her claim on the basis that her case were accepted which the Board did not. But, even on that basis, it found the Applicant is not entitled to protection as a matter of mixed fact and law. Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

14.  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[5].

Grounds for judicial review

15.  The Applicant did not put forward any grounds of application for judicial review in his Form 86.  In her supporting affirmation, she said she did not agree with the Decision of the Board.  At the hearing, after the legal principles in the above section had been explained to her, she confirmed she had no complaint about errors of law, procedural unfairness or irrationality in the Decision.  She only asked to be allowed to stay in Hong Kong longer.  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

16.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court was 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 and quoted relevant precedents in support of its decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claim.  The Applicant’s claim is founded on the threat of rape by her late husband’s creditor for her being unable to repay her late husband’s debt.  The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of his risk of harm.  The Board had carefully weighed the evidence and assessed her credibility.  Because of the multiple and significant inconsistencies in her evidence, the Board found her incredible.  It found he had failed to prove the existence of the loans and threats even to the low standard of proof required. As the Applicant bears the burden of proving his claim, such a finding is fatal.  The Board did not stop there.  It also assessed her claim on the basis of the case as she asserted.  Even on the basis of her evidence, the Board found that there was no factual and legal basis to support her claims for non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of law and of fact.  Insofar as they are finding of the law, the Board is absolutely correct.  Insofar as they are finding of fact, they are within the realm of the Board, which the court in an application for judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision.  The Court could detect no errors of law or procedural unfairness in the Decision.  The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test.  The Decision is utterly without fault.  Having considered his grounds for application, the Court is satisfied that the Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

17.  For the above reasons, the 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

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