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HCAL 2200/2020
[2025] HKCFI 3787
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2200 OF 2020
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BETWEEN
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Nguyen Thi Thoa |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (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 interested party be amended to “Director of Immigration”.
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 2 November 2020, 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 30 October 2020. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002200_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant failed to establish a case of non-refoulement on any of the applicable grounds under the Unified Screening Mechanism (‘the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 27 May 2020, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board as both the putative respondent and the putative interested party in Form 86, when the Director should be named as the putative interested party.
4. Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she feared harm from her creditor Pham Thi Yen (“PTY”) and PTY’s offsiders due to her inability to repay a debt of 700 million Vietnamese Dong (“VND”) to PTY who had a triad background.
Grounds for judicial review
7. 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).
8. The applicant did not advance any ground for her intended judicial review in Form 86. However, she filed three supporting affirmations on 2 November 2020, 4 September 2023 and 26 September 2024 respectively to advance her grounds.
9. No ground for judicial review was advanced in the first affirmation dated 2 November 2020. The applicant merely stated that she strongly believed that her life would be in danger if returned to Vietnam.
10. In her supporting affirmation dated 4 September 2023, the applicant stated she would like to provide more evidence on the fact that she was being subjected to very serious mental torture and threats. She annexed a letter dated 4 September 2023 saying that her relatives in Vietnam texted her son to let him know that the gang came to find them and destroyed her home. This made her feel scared and she could not sleep. She was showing signs of depression and went to see a psychiatrist in Hong Kong. She also mentioned that she was stressful and had depression in 2016, and she had medical record for depression and Alzheimer. She was examined at Bach Mai Hospital, Ha Noi, Vietnam. She reiterated that her life would be in danger and she would lose her life if returned to Vietnam.
11. The applicant also annexed to this affirmation 2 pages of documents in Vietnamese, seemingly dated some time in 2016, and a letter signed by a Psychological Counsellor of the Hong Kong Psychological Counselling Center dated 28 August 2023 certifying that the applicant had attended a psychological counselling session at their center for anxiety symptoms.
12. In the applicant’s latest affirmation dated 26 September 2024, she stated that she would like to confirm some of the timelines to the Hong Kong Immigration Department in 2019. She annexed a letter dated 25 September 2024 stating that she borrowed money from PTY in May 2013, not May 2018. The monthly interest she had to pay was 5 million VND and not 500 thousand VND. She further stated that the events happened from 2013 to October 2018, and she suffered from depression and anxiety disorder in 2016. She said that the interpreter misheard or misunderstood her, or that she was not conscious and remembered the time wrongly due to her head injury. She further stated that the documents she received from the Immigration Department were written in Chinese, which she could not read and understand. She only found out the information being recorded wrongly on the day of the letter when her friend saw the documents and read them to her.
Discussion
13. 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).
14. Thus, the applicant cannot ask this court to re-assess the facts of her case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.
15. Further, as held in Nupur Mst v Director of Immigration, supra, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. Thus, the applicant’s assertions in her affirmations that she was suffering from depression, anxiety disorder or Alzheimer cannot assist her in the Leave Application.
16. Moreover, it was held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. Thus, even assuming that the 2 pages of documents written in Vietnamese annexed to the applicant’s affirmation dated 4 September 2023 were medical certificates, they should not be considered by this court.
17. The applicant seemed to blame the interpreter at the screening stage of her non-refoulement claim for misunderstanding or mishearing her. However, as seen from paragraph 4 of the Board’s Decision, the applicant confirmed to the Board at the oral hearing that she had nothing to add to the Hearing Bundle nor had she found any error needing to amend. If the applicant found that the dates of the events or any information she claimed were recorded incorrectly in any of the documents in the Hearing Bundle, she could have raised them to the Board at the hearing conducted with the assistance of an interpreter.
18. The applicant also suggested that she was prejudiced when the documents provided to her by the Immigration Department were written in Chinese, which she could not read and understand.
19. However, interpreter services were provided at the screening interview and the Board’s hearing. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as she may desire (see Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 and Re Gurung Sagar [2019] HKCA 658).
20. The applicant did have ample opportunities to rectify the information when the interpreter read back the documents to her in her own language at the material time. There is no substance in this assertion either.
21. Thus, none of the grounds that were contained in the applicant’s supporting affirmations could establish any valid ground to challenge the Board’s Decision.
22. The applicant was afforded an oral hearing before the Board on 8 September 2020 and the applicant was present. Hence, the applicant did have the opportunity to present her case to the Board in person.
23. The Board gave detailed analysis and reasoning for its conclusion that the applicant would not face a real risk of torture, arbitrary deprivation of life or persecution upon her return to Vietnam. The Board found the applicant dishonest and unreliable. The Board also found that there was no evidence to support that official or passive state acquiescence was involved in the applicant’s perceived risk from the creditor. The Board did not accept that the applicant’s claimed assault and/or injuries had actually occurred.
24. Further, the Board found from reliable country of origin information (“COI”) that reasonable state protection was available to the applicant, and she would be safe to live in Vietnam, at least other than in her home locality. The Board did not accept that PTY was interested in locating the applicant all over Vietnam, even assuming PTY would have huge resources and manpower, as well as was willing, to expend the same to look for a needle in a haystack, especially to hunt for an impoverished debtor. The Board thus found that internal relocation was viable for the applicant, an able-bodied person with many years of work experience.
25. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI materials and risk of harm was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
26. Thus, the applicant’s alleged danger had been duly assessed but rejected by the Board.
27. 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.
28. 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
29. For reasons aforesaid, the Leave Application is dismissed.
Dated the 26th day of August 2025
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( Irene LEE )
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 his 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/Handed to the applicant/the applicant’s solicitors
on: 26 August 2025
Applicant’s ref. no:
Nil
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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: 26 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16978/20/6/11/V2488
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1158/19 (formerly: RBCZ/10893/19) [T1S126]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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