|
HCAL 1629/2023
[2026] HKCFI 3401
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1629 OF 2023
|
BETWEEN
|
| |
Vu Thi Minh Nguyet |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 13 September 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 31 August 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001629_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 10 August 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendment
3. The applicant named the Board / Non-refoulement Claims Petition Office as the putative respondent in Form 86, when only the Board should be named as the putative respondent.
4. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
The applicant’s case
6. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or killed by her creditor, To Thi Loan, due to her inability to repay an outstanding loan.
Disposal on paper
8. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
9. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
10. The applicant did not advance any ground for her intended judicial review in Form 86. In her supporting affirmation dated 13 September 2023, the applicant mentioned a few matters, which are summarised as follows:-
(1) She had no knowledge of English or Chinese so she did not know how to proceed with her application for judicial review;
(2) She did not have the financial means to obtain concrete legal advice regarding the procedure of appeal;
(3) Her life would be in danger as her creditor could have inflicted more serious harm had they intended to do so; and
(4) She did not have any source [sic] to rely on since her family was very poor and they were unable to help her to solve her problem.
Discussion
11. First of all, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).
12. In fact, all the documents filed by the applicant in relation to the Leave Application were written in English. This indicates clearly that the applicant is either familiar with the English language or she has access to such language assistance if needed. The applicant cannot claim that she has been prejudiced at all.
13. In respect of the applicant’s allegation that there was a lack of legal assistance, the applicant was actually provided with legal assistance during the first-tier screening of her non-refoulement claim. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.
14. Finally, the applicant’s alleged risk from her creditor had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
15. Thus, none of the matters raised in the applicant’s affirmation constitutes any valid ground to challenge the Board’s Decision.
16. 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 [2018] HKCA 524).
17. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
18. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 14 April 2023. The applicant was present and was thus given the chance to present her case to the Board in person.
19. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.
20. The Board had laid out its consideration of the applicant’s case in paragraphs 66 to 70 of the Board’s Decision. In gist, the Board was not satisfied with the applicant’s factual account, which was full of incoherence and improbability. While the applicant might have some issues with her creditor, the Board did not accept her factual account of the events and found it unconvincing that the creditor intended to kill the applicant.
21. Thus, the Board was not satisfied that there was a real chance that the applicant would be killed or subjected to any form of relevant harm were she to return to her hometown. Moreover, internal relocation was a viable option to the applicant. The Board was satisfied that the applicant would be able to work and establish a life for herself in another part of Vietnam.
22. Even assuming the Board were to accept the applicant’s claim in full, the Board found that the applicant still could not substantiate her claims. The creditor she feared was a non-state actor and the applicant’s fear for her arose only from the applicant’s inability to repay a private loan. There was no evidence of state acquiescence in the applicant’s case and her fear of the creditor was not for a Convention reason.
23. Moreover, the Board found no evidence to show that the government of Vietnam was unwilling or unable to provide effective protection. Although country of origin information (“COI”) showed that corruption remained to be a problem in Vietnam, the Board also found from reliable COI that indicated the government of Vietnam had made efforts to improve the integrity of the police, tackle police corruption and achieved positive results. The applicant had made no attempt to seek police assistance. The Board was not satisfied that assistance from the authorities would not be available should the applicant require it.
24. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
25. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
26. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
27. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
28. For reasons aforesaid, the Leave Application is dismissed.
Dated the 10th day of June 2026
| |
( Gladys LEE )
for Registrar, High Court
|
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 his solicitors must:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 10/06/2026
Applicant’s ref. no:
Nil |
|
Sent/Handed 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: 10/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 18576
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 664/21 (Formerly RBCZ 10898/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|