PHAM THI GIANG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1733/2024

[2025] HKCFI 4087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1733 OF 2024

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

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 3 October 2024, 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 20 September 2024 (“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/2024/HCAL001733_2024_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  The Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 29 April 2024, which rejected the applicant’s non-refoulement claim.

Amendments 

3.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office and the Director as the proposed respondents but did not name any putative interested party, when the putative respondent should only be the Board and the putative interested party should be the Director.

4.  The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.

5.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

Application to withdraw and application to re-open the Leave Application before the oral hearing

6.  By way of a letter dated 9 December 2024 addressed to the Registrar of the High Court, the applicant applied to withdraw the Leave Application.  The reason given by the applicant for her withdrawal was that it was safe for her to return to her home country. 

7.  However, the applicant filed an affirmation on 7 April 2025 to request this court to re-open the Leave Application.  She stated in the affirmation that everything was not going as she thought, so she cancelled the repatriation request, and that she was still in danger and would face the risk of being killed or harmed by the creditor if she had to be repatriated.

8.  As no order was granted for the applicant’s withdrawal application, it was not necessary to re-open the Leave Application.  This court will just proceed to determine the Leave Application as if the said two applications were not made.

The applicant’s case

9.  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.

10.  In sum, the applicant claimed for non-refoulement protection because she feared being harmed or killed by her creditor if she were to be refouled to Vietnam as she was unable to repay a loan of 300 million Vietnamese Dong to the creditor.

Oral hearing

11.  The applicant requested for an oral hearing of the Leave Application. However, she was absent at the hearing on 24 June 2025.

12.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application.  The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

13.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

14.  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).

15.  The applicant annexed a document to Form 86 with the title “Grounds on which Relief is sought”.  The grounds as stated in this document are reproduced as follows:-

“1. I believe that the Director of Immigration and the Adjudicator of Torture Claims Appeal Board reached the Decision(s) wrongly in assessing my non-refoulement claim. I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is mainly protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from killings that I may face if I am deported back to my country.

2. From the Director’s Decision(s), it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim.

3. The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.

4. The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me & unreasonably requires me to response to questions that I was not in a position to offer any response.

5. I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decisions. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decisions void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decisions with the arguments put forward above. As such, the decisions of the director should be considered unreasonable in the scope of Public Law.

6. The Adjudicator made a ruling to dismiss my appeal/petition in the Torture Claims Appeal Board/Non-refoulement Claims Petition Office based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decisions was irrational.  I humbly ask this Honorable Court to grant leave to have the Decisions judicially reviewed.”

16.  The said document with contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions.  It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations.  Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

17.  First of all, some of the above grounds were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be the subject matter of the Leave Application.  This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

18.  Paragraphs 2 and 5 of the applicant’s grounds were directed at the Director.  Hence, they could not be used to challenge the Board’s Decision and can be simply ignored.  Thus, only paragraphs 1, 3, 4 and 6 of the grounds are relevant to the Leave Application.

19.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test.  However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable.  It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1. 

20.  In any event, the Board did assess the applicant’s risk of right to life, ie BOR 2 Risk[1]. The Board found that the applicant’s case did not involve any capital punishment or genocide.  The Board did not accept that the applicant had any real danger to be harmed or killed by her creditor or she was at any real risk of arbitrary deprivation of life in Vietnam.

21.  In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take her personal background and experience into account.  However, the applicant did not state which aspects of her personal background and experience had not been taken into account by the Board. 

22.  In fact, the Board did consider the applicant’s personal background and experience very extensively.  The Board examined the applicant’s claims, including the reason why she took out the loan, the time she took out the loan, the number of times she was attacked and whether her family members were injured, etc.

23.  However, the Board was of the view that most, if not all, of the core assertions to the non-refoulement claim had been fabricated or was wholly unreliable.  The Board found that the applicant was not a witness of truth.  In particular, the Board rejected the applicant’s claim that she had taken out a loan for her business in selling cosmetics and her claim that her creditor had ever attacked or threatened her in order to make her repay the loan.  The Board rejected that the applicant fled from Vietnam because of her fear of being harmed or killed by her creditor.

24.  The applicant further alleged in paragraph 3 of the grounds that although the Director had listed the relevant COI which supported the aversions that the police in her country would not be able to protect, the Director failed to consider or give enough weightage to those evidence and ruled otherwise.  This is just a vague and general accusation without any specificity. 

25.  In fact, the Board did not make any finding that the police in Vietnam would not be able to protect the applicant.  On the contrary, the Board found that even though corruption still existed among the Vietnamese authorities and police, the Vietnamese government had taken on-going reforms to combat corruption and improve police efficiency.  There was evidence from reliable COI that showed that the authorities had enhanced their action in cracking down loan sharks and further to proactively prevent and strictly handle loan shark related crimes.  The Board considered that the citizens should be able to obtain assistance from the police and authorities in Vietnam.  The applicant’s assertion that the police would not help her was just the applicant’s speculation, as the applicant had never sought assistance from the police when she was in Vietnam.

26.  In paragraph 4 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by her, and unreasonably required her to respond to questions that she was not in a position to offer any response.  This accusation lacks any particulars in support.  The applicant did not state which explanations she provided were not accepted by the Board and which questions she was not in a position to offer any response.

27.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand her claims better and to assess her credibility and her accounts of the events leading to her claim for non-refoulement protection.  The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim.  This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

28.  In paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational.  There was no particulars or reasons given to say how or why the Board’s Decision was irrational.

29.  The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all the applicable grounds under the USM.

30.  As held by the court of appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, none of the aforesaid grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

31.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

32.  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).

33.  Thus, despite that the applicant has failed to establish any valid ground as aforesaid, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

34.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 16 July 2024.  The applicant was present and was given the chance to present her case to the Board in person.  

35.  The Board found the applicant’s claims highly implausible.  There were numerous inconsistencies among the applicant’s written and oral evidence.  The Board found the applicant to be evasive and untruthful.  The Board found that the applicant used the threats from a creditor as an excuse to come to Hong Kong to work.

36.  The Board also found that even taking the applicant’s case to its highest and to accept the claimed events did happen, the injuries she suffered were not serious, and reasonable state protection was available to the applicant upon her return to Vietnam.  

37.  Further, internal relocation was a viable option for the applicant who has received 8 years of formal education and has experience in running her own business.  There was no evidence to show that the alleged creditor had the real intention to serious harm or kill her, or the power and resources to locate her in other parts of Vietnam other than the applicant’s home area.  The applicant could safely relocate to big cities like Danang to further reduce or negate any perceived risks.

38.  The finding of facts was solely within the ambit of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

39.  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. 

40.  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

41.  For reasons aforesaid, the Leave Application is dismissed.

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

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