DINH THI DANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2371/2019

[2025] HKCFI 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2371 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested a hearing. She appeared before the Court on 22 December 2024.

The applicant

3.  The applicant, aged 51, is a Vietnamese. She entered Hong Kong illegally on 29 March 2014 and was arrested by the police on 2 April 2014. The applicant made a non-refoulement claim on 12 April 2014, 14 April 2014 and 22 April 2014. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditors (“the creditors”), who were triad members, because she failed to repay the loan owed to them.

4.  According to the applicant, in around early 2010, she and her husband took out loans from a bank and the creditors to startup their fishing business. On 2 March 2011, their fishing boat was sunk during a storm and her husband went missing. Around two months later, the applicant was informed by her husband that he was hiding in his friend’s home to avoid loan repayment demands from the creditors. Since then, the applicant had not heard from him.

5.  In around July 2011, the creditors started demanding loan repayment from the applicant. Subsequently, they escalated their action by vandalising her house and kidnapping her younger son, during which they also assaulted her. The applicant sought help from the police and her younger son was released half a day later following police intervention. Thereafter, the applicant sent her two sons to her relatives, while she relocated away from her hometown. Despite so, she was still found by the creditors, who assaulted her for the second time. In March 2013, the applicant went to Mong Cai and then left for Dongxing in China, where she worked as a domestic helper for a year. As the applicant worried that the creditors would eventually find her given the proximity of Dongxing to Vietnam, she sneaked into Hong Kong on 29 March 2014.

6.  The applicant was of the view that she could not seek protection from the police because they would not interfere in private dispute and might also be bribed by the creditors. She considered internal relocation not viable as well because the creditors could utilise their triad network to locate her anywhere in Vietnam.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 September 2017 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

a. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the low intensity and frequency of past ill-treatment from the creditors indicated that they had no real intention to seriously harm or kill the applicant [11]; (ii) there was no evidence showing that the creditors had the means to locate the applicant anywhere within Vietnam or that they were in anyway connected to the Vietnamese authorities [12]-[14]; (iii) state protection would be available [15]-[18] and (iv) internal relocation would be viable [19]-[23].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 23 May 2019, the Board conducted a hearing.

11.  The Board noted from the country of origin information that the Vietnamese government had taken measures to tackle corruption [48]. Regarding the applicant’s claim, the Board found no reliable evidence to show the existence of the loans, the fishing business and the debt collection incidents. In any event, such incidents were private in nature with no evidence of state involvement and that the past ill-treatment received by the applicant also failed to attain a minimum level of severity. The fact that the police did intervene and rescue the applicant’s son further indicated the availability of state protection [54]-[61].

12.  Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [63]-[86], [94]-[97]. In any event, internal relocation would also be available [87]-[93].

13.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 15 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.  The applicant did not raise any specific ground in support of her application.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked the Court to review the Board’s Decision.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … … Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Court has no reason to interfere with it.

20.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

21.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.