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HCAL 1407/2023
[2025] HKCFI 2587
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1407 of 2023
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BETWEEN
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Nguyen Thi May |
1st Applicant |
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Hoang Khanh Ngan |
2nd Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicants’ amended application by Form 86 filed on 14 August 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 3 August 2023 in respect of the 1st Applicant (“Decision (1)”) and dated 13 September 2024 in respect of the 2nd Applicant (“Decision (2)”). By these Decisions, the Board dismissed their respective appeals against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 19 July 2022 in respect of the 1st Applicant (“Notice (1)”) and dated 14 February 2024 in respect of the 2nd Applicant (“Notice (2)”), refusing their applications for non-refoulement protection (collectively, the “Notices”).
2. The leave application was initially filed by the 1st Applicant on behalf of herself on 14 August 2023. It was amended pursuant to an Order of this Court dated 16 October 2024 by adding her daughter, ie the 2nd Applicant, as a party and including Decision (2) as one of the decisions in respect of which leave is sought.
3. The Applicants are Vietnamese nationals, now aged 37 and 1 respectively. She first entered Hong Kong illegally on 10 December 2017 and surrendered to the police the next day. She was refouled to Vietnam on 12 January 2018. She illegally entered Hong Kong again on 3 February 2022 and surrendered to the police on 16 February. On 25 February 2022, she made a claim for non-refoulement protection. 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 application was rejected by the Director’s Notice (1). Her appeal against Notice (1) was dismissed by the Board’s Decision (1).
4. While in Hong Kong, the 1st Applicant developed a relationship with a Vietnamese who is also a non‑refoulement claimant. They are not married. She gave birth to the 2nd Applicant on 2 August 2023. She made a non-refoulement claim on behalf of the 2nd Applicant. The 2nd Applicant’s claim was assessed on all four applicable grounds and rejected by the Director’s Notice (2). Her appeal against Notice (2) was dismissed by the Board’s Decision (2). The Applicants now seek leave to judicially review both Decision (1) and Decision (2).
Legal representation for the 2nd Applicant
5. As the 2nd Applicant is a minor, the 1st Applicant representing her had been advised by this Court at the hearing on 26 February 2025 of the requirements under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the 2nd Applicant so that her specific interest may be fairly put before the court. She had been advised to seek legal representation from a private lawyer or from the Legal Aid Department. Their application was scheduled to be heard after three months to enable her to make the arrangements.
6. On 3 March 2025, this Court was informed by the Director of Legal Aid that the 1st Applicant had made application for legal aid for herself and the 2nd Applicant. Their legal aid application was refused on 15 May 2025.
7. At the hearing on 4 June 2025, the 1st Applicant confirmed that her legal aid application had been refused. The Court explored the possibility of seeking private legal representation with her. She said she had no means to engage private lawyer. She said the 2nd Applicant’s claim is based on her claim, she understood her child specific circumstances. She felt she could adequately present her case as well as the 2nd Applicant’s. Having considered the applicable law, the Form 86, the issues raised, that the Applicants had been legally represented before the Director, that no new evidence would be advanced, the 1st Applicant’s expressed intention not to seek private legal representation, and that she had previously represented herself and the 2nd Applicant’s elder sister, the Court was of the opinion that despite the absence of legal representation, the 2nd Applicant’s leave application may be justly determined without prejudicing her interest. The Court therefore considered the absence of legal representation a mere irregularity, which would not render the proceedings void. Hence, the Court proceeded to hear their leave application.
The Applicants’ case
8. The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim forms (the “NCF”) prepared by the 1st Applicant for herself and for the 2nd Applicant with legal assistance and the record of her screening interviews in the presence of her lawyer. In gist, the 1st Applicant claims, if returned to Vietnam, she and the 2nd Applicant will be harmed or killed by a moneylender (the “moneylender”) because of her inability to repay a loan borrowed from him.
9. The Applicant is married with two daughters. Her widowed mother, three siblings, husband and daughters are living in Vietnam. She had nine years of formal education and had two years’ experience working as a salesperson and one year’s experience operating a seafood farm.
10. In January 2020, she borrowed a sum of 600 million Vietnamese Dong (“VND”) for no fixed term from the moneylender at the monthly interest rate of 7 million VND to finance her seafood farm business. The moneylender had triad background. In January 2021, her business failed. Since February 2021, she defaulted on interest payment. In March 2021, the moneylender and his four associates went to her home to demand repayment. He threatened to do something harmful to her if she failed to repay. They left without injuring her. They came in April 2021 to collect repayment. When she told them she had no money, one of the associates slapped her face twice or thrice. The moneylender threatened to force her into prostitution if she failed to settle the loan. When they came in May 2021 to collect repayment, the moneylender told her to work as a prostitute or deliver dangerous drugs for them, as she could not make any repayment. She begged for extra time. They then punched and kicked her. One of them hit her with a wooden stick once. She fainted. On regaining consciousness, she found herself in a hospital where she remained for one day. She did not report the case to the police because she worried the moneylender would revenge.
11. In June 2021, she fled to Vung Tau and stayed at her friend’s home for six to seven months. She changed her phone number. The moneylender and his associates could not contact her. She said at the screening interview that her husband told her that during those few months, the moneylender and his associates had been to her home three to four times and threatened to kill her if the loan was not settled. On her friend’s advice, she came to seek protection in Hong Kong.
12. She does not believe that state protection is available because the government in Vietnam is corrupt. She does not think internal relocation viable, as the moneylender and his associates could locate her throughout the country through their powerful network.
The Board’s finding in Decision (1)
13. The 1st Applicant testified before the Board in her own appeal. The Board found that there were numerous discrepancies and implausibility in her evidence. It considered her evidence not reliable. She said in her NCF that she did enter into a loan agreement with the moneylender, but she told the Board that her memory got worse because of her pregnancy and she could not remember whether there was a loan agreement. The Board did not accept her explanation, as she had vivid memory as to the date of birth of her daughters and the details of the moneylender’s threats.
14. When asked if she feared the moneylender would force her eldest daughter, who was aged 13 at the material time, into prostitution, she replied that she would not because in Vietnam, a moneylender would not disturb a debtor’s family members, as they were not responsible for the loan. The Board found it implausible that the moneylender allegedly with triad background would not use any illegal means, such as the above, to exert pressure on a defaulting borrower to repay. Likewise, it found it implausible that the moneylender would not have held her husband liable for the loan when she was unable to repay. As her husband and daughters were still living at her parent’s home, the Board found they faced no pressure at all from the moneylender in relation to the loan. All these cast doubt on the veracity of her case about the loan and the threat. The Board reached the conclusion that the 1st Applicant had failed to establish, even to the low standard of proof required, her story about the loan and threats which formed the centrepiece of her case and hence dismissed her appeal.
15. However, the Board went further and assessed her claim on the basis of the account as she asserted. It found even if the loan existed and remained outstanding, there was nothing to suggest that the moneylender had any real intention to seriously harm or kill the 1st Applicant, as she only encountered verbal threats in the March 2021 incident and the injuries she suffered in the April and May 2021 incidents were not serious. She had never been threatened in person. She only learnt about the moneylender’s threat to kill her from her husband after she had fled Vietnam. Also, the moneylender did not actively pursue the recovery of debt. All-in-all, the Board found the 1st Applicant’s risk of harm is low. It also found the feared harm did not arise on account of race, religion, nationality, membership of a particular social group or political opinion. There was also no evidence that the moneylender had the resource to locate her throughout the country, otherwise he would have contacted her after she changed her phone number and she would not have been able to stay in Vung Tau for six to seven months with nothing eventful happening to her.
16. On the basis of the authoritative and credible country of origin information (“COI”), the Board was satisfied that despite the deficiency and widespread corruption in the Vietnamese government, the government has taken steps to improve the situation and to combat corruption. It found reasonable state protection would be available upon her return to Vietnam.
17. In conclusion, the Board did not consider there are substantial grounds for believing the 1st Applicant would be at real risk of any proscribed harm from the moneylender if she returned to Vietnam. It further found that if she would be at risk, such risks are localised in her home area and may be mitigated by internal relocation. Applying the law applicable to non-refoulement protection to the facts found, the Board found the 1st Applicant is not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal.
The Board’s finding in Decision (2)
18. The 2nd Applicant’s appeal was heard by the Board constituting of a different adjudicator. Her claim is founded on the same facts as those relied on by the 1st Applicant. The 1st Applicant also testified in the 2nd Applicant's appeal. She asserted that the 2nd Applicant would be kidnapped or killed by the moneylender if returned to Vietnam because of her inability to settle the loan. She confirmed that is the only fear the 2nd Applicant had for not returning to Vietnam. She made no claim that the 2nd Applicant will face stigmatization or discrimination in Vietnam. She asserted that the Vietnamese government would not protect the 2nd Applicant, and the moneylender would find them even if they relocated to other places in Vietnam.
19. In the 2nd Applicant’s appeal, the Board made similar finding of fact as those it found in the 1st Applicant’s appeal. In addition, it made further adverse finding of fact against the 1st Applicant’s case. It found that it made no sense that the moneylender would be satisfied with the 1st Applicant’s creditworthiness and lent her such a huge loan without collateral. With reference to the COI, it called into question the 1st Applicant’s claim that a moneylender with triad background would only charge a yearly interest rate of 14% on an unsecured loan. It also had doubts whether the 1st Applicant would have been prepared to assume the risk of running the seafood farm by borrowing such a huge sum of money when she did not have any experience in running such a business. The Board found the 1st Applicant incredible, her evidence unreliable and her story not plausible. It found that the core basis of the 2nd Applicant’s claim fell away, ie she had failed to establish the factual basis to support her claim.
20. The Board also assessed her claim on the basis of the account as asserted by the 1st Applicant. It found the 1st Applicant’s belief or fears that the 2nd Applicant would be harmed by the moneylender speculative. She told the Board that she had not informed her family or anyone including the moneylender that she had given birth to the 2nd Applicant in Hong Kong. There was no evidence to suggest that the moneylender knew of the existence of the 2nd Applicant. There was also insufficient evidence that the moneylender would necessarily come to know of her the existence. Moreover, the 1st Applicant’s assertion that the moneylender would kidnap the 2nd Applicant in order to pressure her to repay is inconsistent with her previous evidence that moneylenders in Vietnam would not harass the family members of the debtor. In any event, the Board considered on the basis of the COI that adequate state protection from the moneylender will be available to the Applicants. Hence, the Board considered the risk of the 2nd Applicant being harmed or killed in the future is slim. Furthermore, the Board considered such risks are localised to the 1st Applicant’s home area and may be mitigated by internal relocation.
21. It also found for the same reasons as in the case of the 1st Applicant that even on the basis of her account she was not entitled to protection under any of the applicable grounds under the USM. It therefore dismissed the 2nd Applicant’s appeal.
Legal principles applicable to judicial review
22. 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[5].
Grounds for judicial review
23. In their Form 86, the Applicants annexed a document advancing the following six grounds of judicial review:
(1) the Director’s and the Board’s decisions are wrong, unfair and unreasonable;
(2) the Director failed to give proper weightage to the presence of state acquiescence;
(3) the Board was unreasonable and unfair by placing too much reliance on COI but failed to take their personal background and experience in to account;
(4) the Board was procedurally improper or unfair when assessing whether to accept or not to accept their explanations and required them to response to questions that they were not in a position to offer any response;
(5) the Director was unfair in failing to take such argument into account or to give enough weight to such argument before reaching the decision.
(6) the Board ought to allow their appeals.
24. Some of these grounds are directed at the Director and some to the Board only. As the Director’s decisions in the Notices were superseded by the Board’s Decision (1) and Decision (2) and are not the subject matter of the leave application[6], for the Applicants’ benefit, the Court assumed that all grounds are directed at the Board as well.
25. Apart from vagueness and lack of particulars, these grounds are all directed at the Board’s finding of fact which is solely within the realm of the Board, which the court in a judicial review will not intervene save for errors of law, procedural unfairness and irrationality in the Decision. In answer to the Court’s question on these matters, the 1st Applicant confirmed that they had no complaint about error of law. In relation to the other two grounds, she just asked to be allowed to continue their stay in Hong Kong until her debt could be settled. These cannot constitute arguable grounds of judicial review. In the absence of proper grounds or grounds with adequate particulars, the court in an application for leave to apply for judicial review could only focus on errors of law, procedural unfairness or irrationality in the decision.
Overall scrutiny
26. Having rigorously examined Decision (1) and Decision (2), 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 analysed the evidence carefully, tested it against common sense, inherent probability and against authoritative and credible COI. It did not find the 1st Applicant’s evidence in both appeals credible and reliable. Hence, it rejected her evidence on behalf of herself and the 2nd Applicant that she had taken out any loan from the moneylender and been threatened with death from him. It gave full reasons for its finding. It was on that basis that the Board found the Applicants had failed to establish the factual basis to support their claim for non-refoulement protection under any of the four applicable grounds under the USM. These are finding of fact and would have been sufficient to dismiss the appeal. However, the Board in both appeals went further and assessed their claims on the basis of the fact as asserted by the 1st Applicant. It found their risk of harm to be slim and could be mitigated by state protection and internal relocation. 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 irrationality in the Decisions. Insofar as they are finding of fact, the Court could detect no error of law or procedural unfairness in the Decisions. The Decisions do satisfy the enhanced Wednesbury test. They are not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks. The Decisions are utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
27. For the above reasons, the Applicants’ leave application is refused.
Dated the 19th day of June 2025
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( Seline Sze )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 19/06/2025
Nguyen Thi May
Hoang Khanh Ngan
Applicant’s ref. no: |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/06/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 23055
USM 20683
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 571/22 (Formerly RBCZ 5000440/22)
QA T/C 1558/23 (Formerly RBCZ 5001545/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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)]
[6] Moshin Ali [2018] HKCA 549
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