CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 544 of 2022
|
BETWEEN
|
| |
Nguyen Thi Ngan |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/ |
Putative |
| |
Non-refoulement Claims Petition Office |
Respondent |
| |
and |
|
| |
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 28 June 2022 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 11 May 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 2 November 2021 (the “Notice”) refusing her application for non-refoulement protection.
2. The Applicant had requested an oral hearing. A hearing on 25 February 2026 was scheduled for her and Notice of Hearing was sent to her by post on 12 February 2026 to her address as stated in her Form 86. The notice has not been returned through the post. The Applicant had never informed the court of any change of address since filing her Form 86. There is nothing to suggest that she had not received the notice or had moved. Attempts had been made on the afternoon of 24 February 2026 and the morning of 25 February 2026 to contact her by telephone on the three telephone numbers provided by the Immigration Department to remind her of the hearing. One of the numbers was confirmed to be a wrong number. The calls to the other two numbers were not answered. The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to her notice. The Applicant did not appear at the hearing. 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.
3. The Applicant is a Vietnamese national, aged 38. She was arrested by the police on 29 March 2021. Then, she lodged a non-refoulement claim on 12 April 2021, claiming to have sneaked into Hong Kong on 28 March 2021. Her claim was rejected by the Director. Her appeal against the Director’s decision was dismissed by the Board. She now applies for leave to apply for judicial review of the Board’s Decision
The Applicant’s case
4. The Applicant’s personal background, the factual background leading to the present application, the basis of her previous 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 she will be harmed or killed by a moneylender for being unable to repay her husband’s debt owing to the moneylender.
5. The Applicant was a worker in a shoe factory. She married her husband in 2011 and became a full-time housewife. Her husband had no job and no income before or after their marriage. Even if asked, he did not tell her about his background. They have a son and a daughter. She separated from her husband since 2017, but her son was born in April 2019 about two years after their separation.
6. Her case is that her husband incurred a huge gambling debt. In about 2020, his creditor, who had triad background, came to their home and threatened to harm the Applicant if she could not repay her husband’s debt. The Applicant borrowed 500 million Vietnamese Dong (“VND”) from a moneylender with triad background to repay her husband’s debt. She was unable to pay the moneylender who then harmed her. To avoid further ill-treatment from the moneylender, she fled Vietnam in March 2021 to China. From there she sneaked into Hong Kong.
The finding of the Board
7. The Applicant’s evidence is vague and unsupported by objective proof, documentary or otherwise. She could not provide information relevant to her claim. She did not even know the interest rate charged. The Board found her evasive. Her case is founded on her own bare assertions.
8. The Board studied extensively into the country of origin information of Vietnam (“COI”) and tested the Applicant’s case against the COI and common sense. It found numerous inconsistencies between her evidence in her non-refoulement claim form (“NCF”) and her testimony before the Board. It found her case full of impossibilities. She said she separated from her husband in 2017 because he indulged in gambling and womanizing and did not return home. Her assertion is inconsistent with her evidence that her husband had no job and no income to enable her to live that kind of life. It is also inconsistent with the fact that she had a son with him born about two years after their separation. The Board rejected her explanation as incredible.
9. Her allegation about the loan is inconsistent with the COI about moneylenders’ practice in Vietnam. The Board could not accept the Applicant, being a housewife with no income, could borrow VND 500 million from a triad loan shark. It also found it implausible for a triad loan shark to lend money to a borrower to pay a debt owing to another loan shark with triad background. The Board considered these inconsistencies and implausibility were fatal to the centerpiece of her case and her claim. On the totality of her evidence, it found the loan from the moneylender was a fabrication. With that finding, it also followed that her claim of harm and ill‑treatment from the moneylender was also a fabrication. The Board therefore came to the conclusion that the Applicant had failed to discharge the burden of proving the factual basis to support her claim for protection under any applicable grounds under the Unified Screening Mechanism (the “USM”).
10. For the sake of completeness, the Board also assessed her claim on the basis of her case as she asserted and some necessary secondary finding of fact based on her own case. It found the alleged ill-treatment, even if not rejected, did not attain the minimum level of severity, fell outside the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance, and did not arise on account of any of the reasons stipulated under the 1951 Convention relating to the status of refugees and its 1967 Protocol. It found the dispute between the Applicant and the moneylender was a private monetary dispute in which neither the Vietnamese government nor a state agent was involved.
11. The Applicant never reported the threat or ill-treatment to the police. On the basis of the COI, there was an effective criminal system, a national police force to enforce the law and to protect the citizens against illegal debt collection activities. On the Applicant’s own evidence, it was the Applicant’s choice not to seek police assistance and not that the Vietnamese government was not willing or incapable to enforce the law. The Board found adequate state protection was available. Though not necessary for its Decision, the Board found it would not be unreasonably or unduly harsh for the Applicant to relocate within Vietnam to avoid the risk of harm from the moneylender, if necessary.
12. Applying the law applicable to non-refoulement protection, the Board found the Applicant had failed to discharge the burden of proving her entitlement to protection under any of the applicable grounds.
13. For the above reasons, the Board dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
14. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].
Grounds for judicial review
15. The Applicant had advanced the following three grounds in her Form 86:
16. First, she argued that if returned to Vietnam, her life will be seriously threatened. She will be tortured, beaten or even killed because the gangsters in Vietnam are cruel and violent. The gangsters disregarded the law and were willing to kill to satisfy their anger and ferocity. This ground is a direct challenge of the Board’s finding of fact, which is impermissible. On that finding, her life would not be at risk of any of the proscribed harm, if returned to Vietnam.
17. Second, she disagreed with the Director’s suggestion that she could relocate to live in other location to avoid the gangsters because of her health, personality and the disadvantage he would suffer in the labour market. The Board did not make any such finding. Her personal issues had not been advanced before the Board. Having found she had failed to substantiate her claim for protection on any of the applicable grounds, the Board held in paragraph 121 of its Decision that the question of internal relocation did not arise. Internal relocation was only considered as a matter of caution. That is also a finding of fact solely for the Board, which the court in a judicial review will not intervene, save for errors of law, procedural unfairness and irrationality in the Decision.
18. Lastly, the Applicant claimed that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is possible for the moneylender and gangsters to find her and harm her. This argument is also related to feasibility of internal relocation. For reasons as explained above, internal relocation is a non-issue. This ground is irrelevant.
19. There is no substance in any of the grounds advanced. In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed.
Overall scrutiny
20. 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 studied the COI relating to Vietnam extensively, including the moneylenders’ usual practice and availability of state protection. It analysed the evidence carefully and tested it against common sense, inherent probability and the COI. On the evidence, the Board found the Applicant was not a witness of truth and rejected her case. Hence, it found the Applicant had failed to discharge the burden of proving her entitlement to protection under all applicable grounds under the USM. It gave full reasons for its finding. This is the primary basis of the Board’s Decision.
21. For completeness, it went on to assess her claims on the basis of the factual case as she asserted. It made some further finding of fact. Then, applying the law applicable to non-refoulement protection under the USM to the Applicant’s case as she asserted the Board’s further finding of fact and the COI, the Board found she had failed to establish the factual basis to support her claim for 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 her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
22. For the above reasons, the Applicant’s leave application is refused.
Dated the 13th day of March 2026
| |
(Seline Sze)
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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 13/03/2026
Nguyen Thi Ngan
Applicant’s ref. no:
|
|
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 13/03/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19152/21/11/72/V3190
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1779/21 (formerly RBCZ 10770/21) (T5I26)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1