TRAN THI DUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2398/2019

[2025] HKCFI 590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2398 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

1.   The Form 86 is amended on the court’s own motion.

2.   The Leave Application be dismissed.

Introduction

1.  By prescribed Form 86 filed on 19 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“the Board”) dated 8 August 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a Chinese decision of the Director of Immigration (“Director”) dated 16 July 2017 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  In Form 86, the applicant named the Board and the Director together as the proposed respondents.  As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.  While the Director’s Decision is in Chinese, the Board’s Decision and both the applicant’s Form 86 and supporting affirmation are in English.  In the circumstances, it is appropriate to use English in this Form CALL-1.

4.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 31 December 2024.  A notice of hearing with a reminder[1] of the consequence of absence dated 3 December 2024 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing.  A telephone call was made to the applicant’s given telephone number on the day before the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

5.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

6.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

7.  The applicant is a national of Vietnam. The applicant previously came to Hong Kong illegally from China on 5 September 2015 and surrendered to the Immigration Department on 8 September 2015. On the same day, she lodged her non-refoulement claim and the applicant’s case was considered under all applicable grounds – risk of torture^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5] under the USM.^[6]  The applicant’s claim was based on a fear of being harmed or killed by her creditor to whom she and her husband owed upon return to Vietnam.

8.  On 16 May 2017, she was convicted and sentenced to 15 months’ imprisonment for taking up employment without the authority of the Director.

9.  The Director decided against the applicant’s claim on all the above applicable grounds.  The Director found that the debt dispute between the applicant and the creditor was a pure private dispute and that it had no government involvement.  After having referred to the country of origin information reports (“COI”), the Director was satisfied that state protection was available and internal relocation alternatives were not unduly harsh or unreasonable.  Hence, the applicant’s appeal to the Board.

10.  On 24 July 2019, the applicant attended a hearing before the Board.  At the hearing, the applicant said that she was confused as she had only been released from prison and stated that she did not know where her children were.  After having gone through the applicant’s evidence, the Board found that there was no merit in her application and the applicant’s evidence did not support that the creditor inflicted her with any injuries, and the applicant had tried to avoid repaying the loan even by getting a divorce.  The Board concluded that the applicant was liable to repay the loan jointly with her husband and Hong Kong was not a place to harbor people who wanted to avoid repaying money from a lender under the pretext of torture.  Furthermore, no Vietnamese government had even been involved in the loan. The Board went on to consider the COI, and found that state protection and the option of internal relocation were available.  The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

11.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

12.  The applicant’s Form 86 did not contain any grounds for seeking relief.  In her supporting affirmation of the same date, she simply stated “Affirmation for [leave] to apply for judicial review for my non-refoulement claim decision against the Director of Immigration”.  There were no evidence or identification of errors in support of the intended challenge.

13.  The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board.  After examining the applicant’s evidence in detail, the Board’s findings that she had not been subjected to harm by the creditor and the availability of state protection and internal location are findings of fact, which the court in a judicial review will not interfere with.

14.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge her burden of proving the asserted fears and risks.

15.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

16.  The Form 86 is amended on the court’s own motion.

17.  The Leave Application be dismissed.

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

Form CALL-1