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HCAL 2342/2019
[2025] HKCFI 786
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2342 of 2019
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BETWEEN
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Nguyen Thi Phuong |
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:
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 14 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 20 February 2017 (the “Notice”), refusing her non-refoulement application.
2. The Applicant had requested an oral hearing. A hearing was scheduled and notice of hearing was sent to her by post to her last known address as stated in her Form 86. It has not been returned through the post. She had never informed the court of any change of address. There is nothing to suggest that she had not received the letter or had moved. A court staff attempted to call her a number of time during the week before the hearing to remind her of the hearing, but no one answered the call. The Applicant did not appear at the hearing. The Court was satisfied that the notice of hearing had been duly served on the Applicant. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
Background
3. The Applicant is a Vietnamese national. She entered Hong Kong illegally on 28 December 2013. She was arrested by the police on 8 January 2014 for using and possessing a forged identity card, and remaining in Hong Kong unlawfully. She was convicted and sentenced to 16 months’ imprisonment on 10 January 2014. She made a non-refoulement claim by way of written representations dated 11 March, 7 and 15 September 2014. 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 decision of the Director in 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
4. 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, the Applicant claims that if returned to Vietnam, she will be harmed or killed by three moneylenders: a couple called Ah Hanh and a man called Ah Hung (collectively, the “moneylenders”).
5. The Applicant, now aged 49, had received twelve years of formal education and had 17 years’ experience operating a seafood store and a pawnshop. She had a daughter from her previous marriage, who is living in Vietnam. She is now married to a Hong Kong resident with one son. They are both living in Hong Kong.
6. After divorcing her former husband in 2010, she felt depressed and became addicted to gambling. In mid-2010, she borrowed a total of 30 billion Vietnamese Dong (“VND”) from Ah Hanh and a total of 18 billion VND from Ah Hung. She signed loan agreements with the moneylenders. She had to pay daily interest to the moneylenders but she forgot the amount. She suspected that the moneylenders had triad background.
7. At the end of 2010, she closed down her pawnshop, as the business was failing. Hence, she was unable to pay interest to the moneylenders. Then the moneylenders sent their associates to her home to demand repayment every alternate day. Each time, they verbally threatened and yelled at her for five to ten minutes. Sometimes, they threatened to kill her if she did not settle the loan, and fired a warning shot outside her home.
8. On 8 October 2010, Ah Hanh went to her home with a buyer and forced her to sign documents to sell her house to the buyer for 10 billion VND. Although Ah Hanh collected 10 billion VND from the transaction, the moneylenders still threatened her to settle the outstanding loan, or she would be harmed. On her request, the buyer allowed her to stay at the house for free. Since she could not settle the loan, the moneylenders continued to send their associates to her home to demand repayment.
9. One evening in November 2010, two men took her to an unknown place. They threatened to kill her if she did not settle the loan, and locked her in a room overnight. The next day, they threatened her to settle the loan. As she was unable to repay, they assaulted her. One of the men stabbed a knife on her right thigh, and she passed out. When she regained consciousness, she found herself in a hospital. Afraid of being found by the moneylenders, she left the hospital and took a taxi to a hostel where she stayed for ten days to recover. She did not report the assault and kidnap to the police because she considered it was her own fault that she did not settle the loans. She did not believe that the police would help her.
10. In the morning of 16 November 2010, she went to the office of the People’s Committee of the Phuong Quang Trung to see the chairman to seek permission to sell tea outside the park. The chairman refused her request. Out of disappointment and anger, she pulled down a Vietnam national flag as she was leaving the office, threw it on the floor, stepped on it, and cursed in foul language. In the afternoon on the same day, her friend informed her that the police had gone to her home to look for her. Worried about the consequence of her destroying the national flag, she immediately left the hostel and fled to Mong Cai where she stayed from November 2010 to March 2013 and then fled to Hong Kong.
11. While in Hong Kong, she kept contact with her daughter, who told her that she had not received any information about the moneylenders. The Applicant believes that she would be harmed by the moneylenders if she returns to Vietnam.
12. She claimed that she could not access state protection because she had destroyed the Vietnam national flag and the dispute between her and the moneylenders was a private and personal one. She does not believe internal relocation feasible, as the moneylenders could locate her throughout the country through their powerful network.
The finding of the Board
13. The Applicant testified before the Board. The Board found her case was based only on bare assertions without any supporting evidence. It also found her evidence in respect of the loan and the loan collection incidents very vague, brief, strange and lacking in particulars. Hereunder are some examples.
14. Previously, she said that she borrowed in 2010 to cover her gambling debts. However, she told the Board that she started borrowing in 2005 to cover her losses in businesses including the seafood business and made no mention of any gambling debts.
15. She told the Board that she had to pay 1 billion VND a month as interest, but previously she said she could not say how much the interest was.
16. Previously, she said she did not report the kidnap and assault to the police, but she told the Board that she did report the incidents to the police several times.
17. She told the Board that there were other incidents of physical assaults on her during the debt collection incidents, but previously she said that the only incident of physical assault occurred during the kidnap by the moneylenders.
18. As for her destruction of the Vietnam national flag, the Board noted significant contradictions in her evidence. She previously said that she destroyed the flag after her kidnap. However, she told the Board that the destruction of the flag took place before she was kidnapped. When asked about what the likely penalty of the offence, she replied she did not know. As such, the Board did not accept that she was so scared that she had to immediately flee from her country to avoid the consequence.
19. Apart from the abovementioned inconsistencies in her evidence, the Board considered the Applicant’s use of a forged identity card and her late filing of her non-refoulement claim cast doubt on her credibility and the veracity of her claim. In the absence of any objective proof in support of her bare assertions about the loan and the threats, the Board did not accept she had suffered any severe pain, physical or mental, at the hands of the moneylenders and their associates as alleged by her. It therefore found she had failed to establish substantial grounds showing a foreseeable and real risk of harm. It found it was implausible that she fled to Hong Kong because of her fear for her safety from the moneylenders or the consequence of her destruction of the national flag.
20. It also found in alternative that if she did suffer such pain, the pain and suffering did not attain the minimum level of severity, the moneylenders and their associates were not state agents, and the alleged threats and ill-treatments were not inflicted with consent or acquiescence of the state. It found the alleged ill-treatment were not inflicted on the Applicant on account of a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol. It also found there is no evidence that the Applicant would be at risk of a death penalty being passed on her or of genocide.
21. On the basis of the objective country of origin information (“COI”), the Board did not accept she had difficulty relocating within Vietnam. It considered her allegations about police corruption were vague, speculative, not based on her personal experience, and contradictory to the COI.
22. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds being considered. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
23. 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
24. The Applicant did not advance any grounds for judicial review in her Form 86. In her supporting affirmation, she only reiterated that she borrowed money from the moneylenders and was in fear of being harmed or killed for being unable to repay the outstanding loan. 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 Indonesia. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.
25. 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
26. 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 evidence properly, tested it against common sense and inherent probability. It found the Applicant incredible and gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. 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 failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, the Applicant’s leave application is refused.
Conclusion
27. For the above reasons, the leave application is refused.
Dated the 4th day of March 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 04/03/2025
Nguyen Thi Phuong
Applicant’s ref. no:
Nil |
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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 04/03/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6320/17/2/319/V1012
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3152/16 (formerly RBCZ 3002081/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 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
[2] 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”)
[3] 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
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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