LUONG THI HUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 695/2022

[2026] HKCFI 2704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 695 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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 1 August 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 8 July 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in her Notice of Decision dated 27 May 2021 (the “Notice”) refusing her application for non-refoulement protection. 

2.  The Applicant had requested an oral hearing.  A hearing on 16 March 2026 was scheduled and notice of hearing were sent to her by post on 2 March 2026 to her address as stated in her Form 86 which the Immigration Department confirmed on 6 February 2026 to be her up-to-date address. The notice has been returned in the course of mail.  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 of hearing.   An attempt was made on the afternoon of 13 March 2026 to contact her by telephone on the telephone number provided by the Immigration Department to remind her of the hearing, but the call was 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.  She 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.

Background

3.  The Applicant is Vietnamese national, now aged 43.  She was arrested by the police on 19 August 2020 for some immigration related offences.  She claimed to have departed Vietnam for Mainland China and from there she sneaked into Hong Kong.  She then lodged a non-refoulement claim by written signification on 7 September 2020. While she was released on recognizance, she committed other immigration related offences including taking up unlawful employment and sentenced to a total of 15 months’ imprisonment.  In due course, her 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 claim was rejected by the Director’s Notice.  She was late in filing her appeal, but the Board accepted her late filing.  However, the Board dismissed her appeal.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The Applicant’s personal background, the basis of her claim, 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[5] for reference.  In gist, she claims she will be harmed or killed, if returned to Vietnam, by a moneylender for being unable to repay a loan borrowed from the moneylender.

5.  The Applicant’s case as stated in her non-refoulement claim form (“NCF”) is that she started a construction material business in 2016.  Her business grew.  In 2018, she borrowed 500 million Vietnamese Dongs from a bank at the monthly interest of 1% for a term of one year to expand her business, using her house as collateral.  She offered credit terms to her customers, but her customers failed to pay her.  Her bad debt snowballed and she became unable to repay the bank loan.  On 20 June 2019, she borrowed 500 million Vietnamese Dongs for a term of five months at a daily interest of 2.5 million Vietnamese Dongs.  Since September 2019, she fell into arrears.  The moneylender sent his men to collect interest from her everyday.  They abused her verbally and threatened her with death.  The moneylender’s debt collection activities escalated in December 2019 to damaging her belongings in her home. On 26 December 2019, the Applicant and her husband asked the moneylender for extension of time.  The moneylender gave her until 20 March 2020 to repay.  The outstanding debt amounted to 690 million Dongs.  On 20 March 2020, the Applicant fled from her home to hide in her mother’s home.  On 30 March 2020, the moneylender’s men came to her mother’s home to look for her and asked for her whereabouts.  On the same night, the Applicant fled Hanoi and then sneaked into Hong Kong via Mainland China.

The finding of the Board

6.  The Board seemingly accepted the Applicant’s evidence and assessed her claim on the basis of the factual case as she asserted.  On the basis of her evidence, it made some finding of secondary facts.  As the moneylender’s men only threatened and damaged the Applicant’s belongings and never hurt her, the Board found he had no serious intention to harm or kill her.  It found the ill-treatment inflicted upon her did not attain a minimum level severity, did not fall within the meaning of ‘torture’ under section 37(U) 1 of the Immigration Ordinance and did not arise on account of a reason under the 1951 Convention relating to the status of Refugees and its 1967 Protocol, and her fear was not well-founded. The Board found on the basis of authoritative and credible country of origin information that state protection would be available to the Applicant.  In view of these findings, the Board did not find it necessary to consider the issue of internal relocation.  Applying the law applicable to non-refoulement protection under the USM to the Applicant’s case and its further finding, the Board came to the conclusion that the Applicant is not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal.

Legal principles applicable to judicial review

7.  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[6].

Grounds for judicial review

8.  The Applicant did not advance any grounds for judicial review in her Form 86.  In her supporting affirmation, she reiterated her fear and risk returning to Vietnam.  In effect, she is disputing the Board’s finding of fact that she had failed to prove that she would be at risk returning to Vietnam.  This is not permissible in an application for judicial review.  In the absence of proper grounds or grounds with adequate particulars, the Court in a leave application could only focus its attention on errors of law, procedural unfairness and irrationality in the Board’s Decision.

Overall scrutiny

9.  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. 

10.  The Board seemingly accepted the Applicant’s evidence and assessed her claim on the basis of the factual case as she asserted.  It analysed the evidence carefully, tested it against common sense and inherent probability.  On the basis of her evidence, it made some finding of secondary facts.  It gave full reasons for its findings.  Applying the law applicable to non-refoulement protection under the USM to the Applicant’s case and its further finding of fact, it reached the conclusion that the Applicant had failed to establish the factual basis to support her claim for protection.  On the state of the evidence, it was open to the Board to make the findings as it did.  These are mixed findings of fact and of the law.  Insofar as these are findings of the law, they are absolutely correct.  Insofar as these are findings of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision.  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 had 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

11.  For the above reasons, the Applicant’s 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

Form CALL-1