NGUYEN MINH THAO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 13/2024

[2025] HKCFI 1462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 13 of 2024

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

Following;

	consideration of documents only;          or
	consideration of the documents and oral submissions by the Applicant in open court;

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 2 January 2024 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 15 December 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 December 2022 (the “Notice”), refusing her application for non-refoulement protection.

2.  The Applicant is a Vietnamese national.  She entered Hong Kong illegally in July 2022.  She was arrested by the police and subsequently made a claim for non‑refoulement protection on 13 October 2022.  In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism, 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.  Her appeal against the Notice was dismissed by the Decision of the Board.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, she claimed that she would be harmed or killed by five creditors if return to Vietnam for being unable to repay a loan she borrowed from them.

4.  The Applicant, now aged 56, was married and has three children.  She had received 11 years formal education and had 23 years of working experience.  She and her husband operated a coal mining and trading business.

5.  In around 2017 to 2018, she borrowed loans totalling 180 million Vietnamese Dong from the creditors for the purpose of operating her coal business.  She believed they were triad members.  In late 2018 she could not pay interest.  The creditors chased her for repayment and physically assaulted her for around six times.  She suffered bruises.  In May 2019, one of the creditors hit her head and hand with a bottle.  She bled and had her would stitched.  She did not report the incident to the police.  She moved to stay with her friends for different periods of time.  She moved when she was informed by her neighbours that someone was looking for her.  She did not consider internal relocation feasible because she believed her creditors could locate her sooner or later and kill her.  Eventually, she sneaked into Hong Kong in July 2022.

6.  She maintained contact with her children and mother.  She was informed that nothing eventful had happened to them in Vietnam.

Finding of the Board

7.  The centrepiece of the Applicant’s claim is the various loans, her inability to repay and the assaults.  However, the Board found there was no evidence to support the Applicant’s claim about the existence of the loan or the assaults.

8.  That apart, from the number of alleged assaults on the Applicant, the minor nature of the injuries she suffered, the fact she was outnumbered during each of those assaults and the fact that nothing eventful happened to the Applicant’s family members who were left behind by the Applicant, the Board found that the creditor could have killed her if they wanted to, but they never did.  Hence, the Board further found that the creditors had no intention to seriously harm or kill her.  They only intended to pressure her to repay the loans.

9.  On the other hand, the Applicant never reported the assaults to the police in Vietnam and did not seek protection at the first available opportunity upon arriving Hong Kong.  She also left her family members behind.  From the Applicant’s conduct, the Board inferred that the harm and ill-treatment from the creditor and their underlings as perceived by the Applicant was not imminent.  As the ill-treatment suffered by the Applicant did not attain a minimum level of severity, the Board found the risk of harm suggested by the Applicant to be her own speculation and not real.

10.  The Board also made the following finding of fact.  There was no evidence to suggest that the creditors and their fellows are public officials or acting in any official capacity.  The dispute between the Applicant and the creditor is a private monetary dispute and the alleged harm or ill-treatment was not on account of any of the reasons protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol. On the basis of authoritative and credible country of origin information (the “COI”), the Board found despite corruption and deficiency in the Vietnamese police, steps are being taken by the government to improve the situation.  The COI reported that special units have been set up to address the problems of loan sharking and illegal debt collection activities.  It was satisfied that adequate state protection is available in Vietnam.  It was the Applicant who chose not seek protection by not reporting the incidents.  It was not the case that Vietnam was unwilling or unable to afford protection to the Applicant.  In addition, being an able-bodied with vast working experience and without any health problem, the Board found it would not be unduly harsh for the Applicant to relocate to anywhere in Vietnam.

11.  Applying the law applicable to non-refoulement protection to these facts, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal against the decision of the Director in the Notice.

The legal principles applicable to judicial review

12.  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^[5].

Grounds for judicial review

13.  The Applicant did not put forward any grounds of application for judicial review in her Form 86.  In her supporting affirmation, she repeated her case and reiterated her fear of harm from the creditors.  In effect, she was seeking to challenge the finding of fact of the Board which is not permissible.

14.  After the legal principles in the preceding section had been explained to her, the Applicant repeated the gist of her claim and said she just wanted to stay longer in Hong Kong.  She said she had been informed by her acquaintance that one of the creditor had come to look for her in Hong Kong and she did not dare to meet him.  These are not arguable grounds of application.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

15.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its Decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues raised by the claim. The Applicant’s claims are founded on her fear of being harmed or killed by her creditors.  The Board found the centrepiece of her claim was based on mere assertions not supported by any credible evidence.  However, it also assessed her claim on the basis of the case as she asserted.  But even on that basis, the Board found she had failed to prove the factual basis to support she had a well-founded fear of any of the proscribed harm or risk of harm.  It also found she could mitigate the risk of harm by accessing state protection or resorting to internal relocation.  It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM.  The Board’s Decision is a mixed finding of fact and of the law.  Insofar as the finding of the law is concerned, the Board is absolutely correct.  Insofar as the finding of facts is concerned, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Board could find no errors of law or procedural unfairness in its Decision.  The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test.  The Court is satisfied that the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

16.  For the above reasons, the Applicant’s application for leave to apply for judicial review 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]