CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 548 of 2022
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BETWEEN
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Le Thi Hue |
Applicant |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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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 Applicant’s application by Form 86 filed on 28 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 15 June 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 May 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 which was also confirmed by the Immigration Department on 6 February 2026 to be her latest address. The Notice has not 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 46. She was arrested for various immigration related offences and sentenced to 15 months’ imprisonment on 5 August 2017. She raised a non-refoulement claim on 8 May 2018 which she later withdrew. She was then repatriated back to Vietnam.
4. On 14 January 2021, she was arrested again for remaining in Hong Kong without lawful authority and sentenced to 15 months’ imprisonment on 2 February 2021. On 6 February 2021, she raised a non-refoulement claim by written signification. 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. Her 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 and will be subjected to domestic violence by her husband.
5. In her non-refoulement claim form (“NCF”), the Applicant claimed to have borrowed 500 million Vietnamese Dong (“VND”) at a monthly interest rate of VND 9 million towards the end of 2014 to start a fish farming business with her husband. Since November 2015, she could not paid the monthly interest. Eventually, the business was closed down in early 2016 because of mis-management. In September 2016, ten of the moneylender’s men came to her home to demand payment and threaten to kill her if she could not pay within a month. The men came again in January 2017. They assaulted the Applicant. She fell unconscious. She was stitched up in the hospital and recovered in a month. Then she fled to Hong Kong. She was repatriated in June 2018. In August 2018, the men came to demand payment and threatened her. Since then, her husband who had drug problem also assaulted her everyday. She moved to her cousin’s home and also to Ho Chi Minh City, but her husband managed to locate her and brought her home. She made a report to the police and caused her husband to be detained. During her husband’s detention, the Applicant fled to Hong Kong for the second time. While in Hong Kong, she was informed by her son that the moneylenders’ men had come to ask him for her whereabouts, but they did not harm him.
The finding of the Board
6. The Board found the Applicant’s case consistent, accepted her evidence and assessed her claim on the basis of her case as she asserted. It noted that except for one occasion, the moneylender’s men had not assaulted the Applicant. The injuries she suffered on that occasion were not serious. On all the other occasions, the men only threatened her. The Board found the moneylender had no intention to seriously harm or kill the Applicant. It found the moneylender’s men only threatened her for the purpose of coercing her to pay.
7. The injuries suffered by the Applicant at the hands of her husband were also superficial and not serious. The Board found the husband also had no intention to seriously harm the Applicant. He assaulted the Applicant because of his own drug problem and to vent his anger on her because of the debt.
8. The Board found the alleged ill-treatment, whether by the moneylender and his men or by her husband, 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 and that the dispute between the Applicant and her husband was a domestic dispute. In all these disputes, neither the Vietnamese government nor a state agent was involved.
9. The Applicant never reported the threat or ill-treatment by the moneylender to the police. It was her choice not to seek police protection. She reported her husband’s violence and the police took action to detained him. On the basis of the COI, the Board found adequate state protection available.
10. Applying the law applicable to non-refoulement protection to the Applicant’s case and its additional finding of fact, the Board found the Applicant had failed to discharge the burden of proving her entitlement to protection under any of the applicable grounds. Hence, it dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
11. 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
12. 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.
13. 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 is a direct challenge of the Board’s finding of fact, which is impermissible.
14. Second, the Applicant disagreed with the Director’s suggestion that she could relocate to live in other location to avoid the gangsters because of her health, personality and the disadvantage she would suffer in the labour market. The Board did not make any such finding. 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 paragraphs 100 to 102 of its Decision that the question of internal relocation did not arise. This ground is irrelevant.
15. 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 is also related to feasibility of internal relocation. For reasons as explained above, internal relocation is a non-issue. This ground is irrelevant.
16. 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
17. 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 Unified Screening Mechanism (“USM”); the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.
18. The Board accepted the Applicant’s evidence. On the basis of her evidence and the country of origin information, it made further finding of fact. Then, applying the law applicable to non-refoulement protection under the USM to the Applicant’s case as she asserted and its further finding of fact, the Board came to the conclusion the Applicant had failed to establish the factual basis to support her claim for 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
19. For the above reasons, the Applicant’s leave application is refused.
Dated the 27th day of March 2026
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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
a) 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 27/03/2026
Le Thi Hue
Applicant’s ref. no:
Nil |
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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 27/03/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18036/21/6/14/V2867
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 322/21 (Formerly RBCZ 10220/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1