PHAM THI VANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2343/2019

[2025] HKCFI 1961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2343 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

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 14 August 2019 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 19 July 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 July 2018 (the “Notice”), refusing her non-refoulement application.

Background

2.  The Applicant had requested an oral hearing.  A hearing was scheduled for her on 17 February 2025 and notice of hearing was sent to her by post to her address at Tam Kung Road as provided by the Immigration Department on 26 November 2024.  She did not appear at the hearing.  Upon realizing that address was the Applicant’s only reported address back in 2015 before she filed her Form 86, another hearing was scheduled for her on 9 April 2025 and notice of hearing was sent to her by post to her address at Un Chau Street as stated by her in her Form 86 filed in 2019.  Again, she did not appear. 

3.  Both notices had not been returned through the post.  The Applicant had never informed the court of any change of address.  A court staff attempted to call her on her mobile phone on the day of the hearing, but was informed that there was no such number.  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.  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.

4.  The Applicant is a Vietnamese national.  She entered Hong Kong illegally on 18 May 2011.  She was arrested on 27 May 2011 and deported back to Vietnam on 30 March 2012.  She sneaked into Hong Kong again and surrendered to the Immigration Department on 14 August 2015.  She made a non-refoulement claim on 7 October 2015.  In due course, her non-refoulement 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.  Her appeal was dismissed by the Board’s Decision. She then applied for judicial review of that Decision.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claims that if returned to Vietnam, she will be harmed or killed by a moneylender (the “moneylender”).

6.  The Applicant, now aged 64, was born in Thanh Pho Hai Du-ong, Vietnam.  She had received five years formal education and had 36 years’ working experience, mainly operating her own agricultural and poultry business.  She is married with two children. Her husband and children are living in Vietnam.

7.  The Applicant claimed that to finance her agricultural and poultry business, she borrowed from the moneylender 100 million Vietnamese Dong (“VND”) in 1995, 150 million VND in 2009, and 100 million VND in 2010.  The moneylender was a gangster engaging in black market deals and money laundering activities.

8.  The Applicant had not repaid any principal or interest at all material times.  For twenty years between 1995 and 2015, nothing eventful happened in connection with the repayment of the three loans.  In about July 2015, after learning that she had closed down of her business in May 2015, the moneylender approached her alone at her home for the first time and demanded repayment of the three loans.  They subsequently signed an agreement on 20 July 2015, stipulating her obligation to pay a sum of 500 million VND all inclusive, without specifying the respective amount of principal and interest, which fell due on 25 July 2015.  The moneylender kept the original of the agreement and she had a photocopy.  When signing the agreement, the moneylender threatened to hire people to assault her, torture her and forced her to be a prostitute if she failed to settle the loans on the due date. 

9.  The Applicant claimed that state protection was not available because the police in Vietnam are corrupt and the dispute between her and the moneylender was private and personal in nature. She does not believe internal relocation feasible, as the moneylender could locate her throughout the country through his powerful network. Knowing that she could not meet the deadline, the Applicant hid in her sister’s place until she left Vietnam for Hong Kong in August 2015. 

The finding of the Board

10.  The Applicant testified before the Board.  The Board had cumulative and significant concerns arising from multiple and significant inconsistencies between her testimony before the Board and her evidence in her NCF which could not be overcome by her responses or the evidence overall.   It found her incredible and the centerpiece of her claim problematic.

11.  In her NCF, she claimed that she had borrowed three loans from the moneylender in 1995, 2009 and 2010.  At the hearing, she said she could not remember when she borrowed.  She first tried not to answer the Board’s question as to when the loans were borrowed.  Then, she suggested it was one to two years before she last came to Hong Kong in August 2015.  That would be in 2013 and 2014.  That is a significant departure from her evidence in her NCF.  She put the blame for the inconsistencies on her old age.  She also demonstrated difficulties discussing how much she borrowed from the moneylender at various times. When asked why in the past twenty years, the moneylender had not approached her for repayment, she said she “kept convincing him”. Then, she said they had “agreed to be like brother and sister”.   When asked why they would agree to or abide by such an informal relationship as they were not previously known to each other, she said it was because the moneylender took pity on her because of her poverty.  The Board found that explanation difficult to reconcile with her classification of her moneylender as a loan shark and gangster intent on finding and killing her throughout Vietnam and who had also now taken to vandalizing her home and beating her husband.  The Board also found it difficult to accept her new allegation that all of a sudden the moneylender started beating her husband since 2018 after she had left Vietnam for three years.  The Board found the Applicant not credible.  It did not accept she had debts to the moneylender or anyone else in Vietnam as she claimed and that she had ever been threatened with death at any time.  It did not accept that she would face a real risk of harm of any type in Vietnam.  Applying the law applicable to non-refoulement protection to the facts, the Board found she had failed to establish her claim to protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

12.  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

13.  The Applicant did not advance any grounds for judicial review in her Form 86.  In her supporting affirmation, she reiterated the facts of her case and that the moneylender had sent his associates to vandalise her home and threaten to kill her.  Hence, she fled to Hong Kong for protection.  In effect, she is seeking to challenge the finding of fact by the Board that she had failed to prove the factual basis to support her claim for non-refoulement protection.  That is not permissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Overall scrutiny

14.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claim.  The Applicant’s claim is founded on the threat of death by her moneylender for not being able to repay her loans and interest.  The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of her risk of harm.  The Board had carefully weighed the evidence, tested it against inherent probability and common sense. Because of the multiple and significant inconsistencies in her evidence, the Board found her incredible.  It found she had failed to prove the existence of the loans and threats even to the low standard of proof required.  As the Applicant bears the burden of proving his claim, such a finding is fatal.  The Board found that there was no factual basis to support her claims for non-refoulement protection under any of the four applicable grounds under the USM.  That is a finding of fact solely for the Board, which the court in an application for judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision.  The Court could detect no errors of law or procedural unfairness in the Decision.  The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test.  The Decision is utterly without fault.  Having considered his grounds for application, the Court is satisfied that the Applicant’s grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

15.  For the above reasons, the leave application is refused.

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

Form CALL-1