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

HCAL 82/2024

[2025] HKCFI 2537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 82 of 2024

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 oral submissions by the Applicant 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 8 January 2024 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 29 December 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”), refusing her application for non-refoulement protection. She named the Board and the Director as proposed respondents, but did not name any proposed interested party. In news of the conclusion reached hereunder, the Court did not consider it necessary to correct the anomaly.

Background

2.  The Applicant is a Vietnamese national. She sneaked into Hong Kong via Shenzhen on 30 July 2023. She surrendered to the Immigration Department on 2 August 2023 and raised a non-refoulement claim by written signification on 12 September 2023. In due course, her 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 against the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that she will be harmed or killed by a moneylender, if returned to Vietnam, for being unable to repay the debt owed to her.

4.  The Applicant, now aged 41, was is married with two daughters. She had received nine years of education and had five years of working experience. Her husband is a lorry driver. In mid 2019, she borrowed 300 million Vietnamese Dong (“VND”) from a notorious moneylender with triad background at a monthly interest of 18 million VND to start her scrap metal business. Her business went well. After a month, she borrowed another 200 million VND from the moneylender. The total loan became 500 million VND and the monthly interest was 30 million VND. Her business went well until March 2020 when the covid pandemic attacked Vietnam. She was unable to pay monthly interest. The moneylender was understanding. She did nothing other than reminding the Applicant to pay on time next month.

5.  In April 2020, the Applicant closed down her business. She was unable to pay interest. The moneylender and her men went to the Applicant’s husband’s home to demand payment. They scolded her with foul language and threatened to vandalise her home. She begged for more time. The moneylender said she would return next month. The Applicant was unable to pay in June. The same events repeated themselves.

6.  One day in July 2020, while riding her motorcycle on the street, the Applicant noticed that she was being followed by another motorcycle driven by one of the moneylender’s men. Suddenly, that motorcycle accelerated, bumped against the Applicant’s and fled. The Applicant fell and fractured her leg which required an operation and 11 days’ hospitalization. She fully recovered in 16 months.

7.  After the Applicant was discharged from hospital, she moved to live in her maiden home. Her husband told her that the moneylender frequently went to his home looking for her and threatened to kill her if she did not repay the loan.

8.  The Applicant returned to her husband’s home in November 2021. Several days after her return, the moneylender appeared and demanded repayment. Again, the moneylender sympathized the Applicant and gave her six months until May 2022 to repay the principal and waived all outstanding interest. The Applicant then started a bread making business. Again that business failed.

9.  The Applicant could not repay in May 2022. She offered to sell a piece of farmland to repay and asked for time. The moneylender gave her another six months. Again, she was unable to sell the farmland and repay.

10.  In December 2022, the moneylender gave her another month to repay. This time, the moneylender threatened that if the Applicant was still unable to repay, the moneylender would harm her and her family members. From January to July 2023, the moneylender came to visit the Applicant every month for repayment. Everytime, the Applicant asked for more time.

11.  Eventually, the Applicant left Vietnam for Dong Xing in the Mainland and then came to Hong Kong to seek protection. While in Hong Kong, her husband told her that the moneylender became furious on learning that she had left Vietnam and threatened to kill her if the moneylender located her and if she did not repay. The Applicant did not think she could access state protection in Vietnam or that she could avoid the harm by internal relocation.

The finding of the Board

12.  The Board noted that the moneylender had given the Applicant huge allowance for her default. She allowed the Applicant as much time as she asked and waived the outstanding interest. It was without having receive any ill-treatment that the Applicant fled from Vietnam to Hong Kong. Under such circumstance, the Board considered it unsurprising that the moneylender became furious and uttered the threat at spur of the moment. It considered the Applicant’s fear of harm arising from the traffic incident purely her speculation. It found the treatment the Applicant received did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance. It found presumably on the basis of country of origin information (“COI”) that the Vietnamese government had undergone reforms to combat corruption in the police and to improve efficiency. Such information is very well known. For these reasons, the Board rejected the Applicant’s claim under Torture Risk ground and BOR 3 Risk ground as unsubstantiated.

13.  The Board could find nothing in the Applicant’s case to support a claim under BOR 2 Risk ground. It also found her dispute with the moneylender a private loan dispute and her fear of ill-treatment did not arise on account of race, religion, nationality, membership of a particular social group or political opinion (“Convention reasons”) as to entitle her to protection under Persecution Risk ground.

14.  Finally, the Board found, given her age, education, working experience and background, the Applicant should have no difficulty finding employment and living a normal life in a city of her choice, such as Ho Chi Minh, Hanoi, Da Nang.

15.  Hence, the Board dismissed her appeal.

Legal principles applicable to judicial review

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[5].

Grounds for judicial review

17.  The Applicant did not advance any grounds for judicial review in her Form 86 or her supporting affirmation. At the hearing, after the above legal principles had been explained to her, she confirmed that she had no complaint about error of law, procedural unfairness and irrationality. She only asked for more time to stay in Hong Kong to wait for her mother to sell the farmland and then she will return to Vietnam. This could not be an arguable ground 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, ie error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

18.  Having rigorously examined the Decision, the papers 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 four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of her case as she asserted. She could not have any grounds to complain about the Board’s finding of these primary facts. It was on the basis of her account of events that the Board made further finding that the ill-treatment she received did not fall within the meaning of ‘torture’ for the purpose of Torture Risk ground; that her dispute with the moneylender was a private dispute; that her fear of harm did not arise on account of a Convention reason; and that the harm is localized. It also found on the basis of COI that state protection and internal relocation are viable options to avoid or reduce the risk of harm. Then, applying the law applicable to non-refoulement protection to those facts, it found she had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The proposed judicial review has no realistic prospect of success.

Conclusion

19.  As the proposed judicial review has no realistic prospect of success, the Applicant’s application for leave to apply for judicial review is also 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