NGUYEN THI THUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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 30 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 13 June 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 October 2021 (the “Notice”) refusing her application for non-refoulement protection.

2.  The Applicant had requested an oral hearing.  A hearing on 4 March 2026 was scheduled and notice of hearing were sent to her by post on 12 February 2026 to her address as stated in her Form 86 and to her latest address as discovered from the Immigration Department on 6 February 2026.  Neither of the notices 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 3 March 2026 to contact her by telephone 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.

3.  The Applicant is a Vietnamese national, aged 40. She was arrested for various immigration related offences and sentenced to 15 months’ imprisonment on 10 April 2021.  She raised a non-refoulement claim by written signification on 26 July 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 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 [1] for reference.  In gist, she claims she will be harmed or killed by a moneylender for being unable to repay her debt owing to the moneylender.

5.  In her non-refoulement claim form (“NCF”), the Applicant claimed she had borrowed 200 million Vietnamese Dong (“VND”) in about 2010 from the moneylender at a half-yearly interest rate of 10% of the principal for the purpose of buying new stock for her women’s fashion shop.  After paying four instalments of interest, she was unable to pay in 2013.  The moneylender threatened to kill her.  She moved from place to place in Vietnam for seven years to avoid the moneylender.  Eventually, she sneaked into Hong Kong.

The finding of the Board

6.  The Board studied extensively into the country of origin information of Vietnam (“COI”), in particular about moneylending practice in Vietnam and tested the Applicant’s case against the COI and common sense.  It found numerous significant discrepancies and inconsistencies between her evidence in her NCF and testimony before the Board as well as numerous and significant impossibility in her case.  Her account about the loan was also inconsistent with the usual practice of moneylending as described in the COI.  The Applicant’s failure to explain these inconsistencies and implausibility led the Board to the conclusion that she was not a witness of truth.  The Board found she kept changing her evidence and her case was a fabrication.  It found she had failed to prove the factual basis to support her claim for protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”).  Hereunder are some of the Board’s concerns.

7.  The Applicant gave conflicting evidence about the kind of goods she sold in her shop and whether the moneylender vandalised her shop by burning her stock of clothes or by making them dirty.  The Board also found it incredible that despite she had maintained regular contacts with her mother, her mother only told her in 2019, six years later, that the moneylender had vandalised her shop in 2013.

8.  The Board found inconsistencies in her evidence about the interest rate charged under the loan.  In her NCF, she said she had to pay two half-yearly interest of 10% on the principal, making 20% per annum. But she testified before the Board that she paid only 5% for three months due to poor business.  Putting that difference aside, contrary to the COI, the usual rate charged by moneylenders was between 180% to 300%, which made her account incredible.

9.  The Applicant had no idea about her business income before and after obtaining the loan.  She said that in the beginning she had a good income from the business, meaning VND 1 million per month.  Then, she said the business turned bad.  When asked what was the income, she also said it was VND 1 million.

10.  There are aspects of her case which are implausible.  She said she started her business with VND 130 million.  But her evidence was that she was very poor, had no bank account, no saving and never borrowed apart from the loan now in issue.  She said after fleeing her home in 2013, she slept under the flyover, worked as a casual labourer earning VND 700 per month (equivalent to HK$0.231) and lived on bread and water costing VND 12 per meal (equivalent to HK$0.00396).  But, in a different context, she said she applied for a China visa for sight seeing in China.

11.  There are aspects of her case which are incredible.  She said she was told to go to Hong Kong to seek protection.  But on her two trips to Hong Kong, she did not seek protection, but took up illegal employment for which she was arrested and sentenced to prison.

12.  The Board also found her account about the loan inconsistent with the usual practice of moneylending as described in the COI.  According to the COI, the usual interest rate charged was an exorbitant rate of 180% to 300% per annum while the rate according to the Applicant’s case were far below that norm.  Also, according to the Applicant and contrary to the COI, the moneylender never asked her about her background and repayment ability.  It was implausible that the moneylender would have lent such a huge sum in the light of her background, working experience, past income and absence of security.

13.  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 USM.

14.  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.

15.  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 her 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 available.  Though not necessary for its Decision, the Board also found out of caution that 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.

16.  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.  Hence, the Board dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

17.  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

18.  The Applicant advanced three grounds of application in her Form 86.  The Court has repeatedly seen such grounds of application among leave applications filed by Vietnamese claimants.  They are lacking in particulars.  It appears that these grounds are formatted grounds adopted by claimants which may have no bearing to their case.   One of the grounds is specifically directed at the Director.  As the Director’s decisions in the Notice had been superseded by the Board’s Decision, it is no longer susceptible to judicial review: Re Moshsin Ali [3]. For the Applicant’s benefit, it is assumed that this ground is also directed at the Board.

19.  In her first ground, the Applicant 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.  On the Board’s finding, her life would not be at risk of any of the proscribed harm, if returned to Vietnam.  This ground is a direct challenge of the Board’s finding of fact, which is impermissible.

20.  Second, the Applicant disagreed with the Director’s suggestion that she could relocate to live in other locations to avoid the gangsters because of her health, personality and the disadvantage she would suffer in the labour market.  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 138 of its Decision that the question of internal relocation did not arise.  Nevertheless, out of caution, it considered this issue.  On the basis of the case she asserted (which was what make this assessment necessary), the Board found, given her background, including her having worked as a casual worker, it would not unreasonable or unduly harsh for her to relocate.  This is a finding of fact. On the state of the evidence, it was open to the Board to make such finding.

21.  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 had not been advanced before the Board.  The Board found on the evidence that the Applicant’s claimed fear of ill-treatment was only confined to the area near her home.  The moneylender never harmed her after she left her home in 2013. The Board therefore found the Applicant had failed to discharge the burden of proving that internal relocation is not feasible.  This is a finding of fact solely for the Board and which was open to the Board to make on the state of the evidence.

22.  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

23.  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, in particular 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 the factual basis to support her claim for 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.

24.  For completeness, it went on to assess her claims on the basis of the factual case as she asserted.  It made some further necessary finding of fact on the basis of the Applicant’s case and the COI.  Then, applying the law applicable to non-refoulement protection under the USM to the Applicant’s case as she asserted and the further finding of fact, the Board found she had failed to prove her entitlement to 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

25.  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