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

HCAL 2918/2019

[2025] HKCFI 2508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2918 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 28 April of 2025. I shall deal with her application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 64, is a national of Vietnam. She came to Hong Kong illegally on 25 March 2015 and surrendered to the Immigration Department. She lodged her non-refoulement claim by a written signification dated 30 March 2015 on the basis that, if refouled, she will be harmed or killed by the Vietnamese government because she had taken part in an illegal religious gathering in Vietnam.

5.  According to the applicant, she was born in a Catholic family. In a silent night in 2014, she had joined a mass where the father described the hypocritical behaviours of the Communist Party. Her husband had recorded the contents into a video disc, which were disseminated to other churchgoers. In the evening on 5 March 2015, the police of Vietnam came to her home and took her to the police station for questioning about her husband’s whereabouts. On 8 March 2015, the police officers came to her house and took her to the police station again. They threatened her that if she still refused to tell them her husband’s whereabouts, they would assault her. They pushed her onto the floor and splashed water on her face. A week later, the police officers also took her to the police station where they asked her husband’s whereabouts. When she said that she did not know, they slapped her face on her ears. She fainted. After she had come round, they released her. On 21 March, she left Vietnam for China. She finally came to Hong Kong illegally.

The Director’s Decision

6.  The Director had rejected her torture claim. Therefore, the Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) from her experience, the risk of being harmed or killed is low if she returns to Vietnam [15]-[20]; (ii) she may have state protection [21]; and (iii) internal relocation is viable [22]-[26].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 23 July 2019, the Board conducted an oral hearing for her with an interpreter.

9.  Having considered the applicant’s evidence [12]-[13], the Board came to the conclusion that, even if her evidence were accepted:

(1) she only suffered minor injury [40];

(2) her husband had returned to Vietnam and arrested by the police [40];

(3) state protection is available if she returns to Vietnam [51]; and

(4) internal relocation is viable [65].

10.  For the above reasons, the Board dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 4 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has raised no specific ground to challenge the Board’s Decision in Form 86 or in her affirmation.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  The applicant has raised no valid ground to challenge the Board’s Decision.

17.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.