DINH HANG LUA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1371/2022

[2026] HKCFI 2487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1371 OF 2022

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Vietnam who had previously illegally entered Hong Kong in August 2018 but was subsequently arrested by police and was repatriated to Vietnam in November 2018 again sneaked back into Hong Kong some 3 years later on 10 September 2021, and was arrested by police 7 months later on 8 April 2022.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in a village in Huyen Bat Xat, Tinh Lao Cai Province, Vietnam. After leaving school she assisted in her parents’ farming, went through 2 failed marriages and raised 3 children in her home village.

3.  In August 2018, she fled from her creditor after failing to repay her debts due to her unsuccessful fruits sale business by departing Vietnam for China and sneaked into Hong Kong, but was subsequently arrested by police and repatriated to Vietnam in November 2018.

4.  Upon returning to her home village in Vietnam after repaying her previous creditor with the help of her former husband, the Applicant started another business in 2021 selling pigs imported from China with the help of another loan borrowed from another money-lender, but her business again failed after she was cheated of all her money by her pigs importer, and when she was unable to repay her loan, her creditor then sent men to threaten her, and after she was beaten by those men in June 2021, she again departed Vietnam on 5 September 2021 for China, and from there she later again sneaked into Hong Kong, and upon her subsequent arrest by the police some 2 months later she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 May 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 2 June 2022 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor and associates upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 100 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

7.  On 21 June 2022, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 17 November 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 23 November 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from some creditor over her unpaid debts that caused her to leave her country to come to Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong until some 7 months alter and only after her arrest by the police, even if her such claim were true that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 30 November 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from the killings that she may face if deported back to her home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing her claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required her to respond to questions that she was not in a position to offer any response;

(7) That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.         

10.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to the  Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  Moreover, the Applicant has recently in writing requested to withdraw her application as her problem in her home country has been resolved that it is now safe for her to return to Vietnam

15.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss her leave application.

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