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HCAL 3372/2019
[2025] HKCFI 3537
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3372 OF 2019
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BETWEEN
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Bui Thi Thu Huyen |
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 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 13 November 2019, 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 7 November 2019 (“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/2019/HCAL003372_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection were not made out on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 10 April 2017.
Amendments
3. The applicant named both the Board and the Director as the putative respondents and did not name any putative interested party in Form 86, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.
4. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and add “Director of Immigration” as the putative interested party.
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, her creditor and the creditor’s associates would harm or even kill her for an unpaid debt of 300 million Vietnamese Dong.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application. However, she was absent at the hearing on 3 June 2025.
8. 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.
9. 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
10. 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).
11. The applicant did not provide any ground for judicial review in Form 86, nor in her supporting affirmation dated 13 November 2019. The applicant merely stated in the affirmation that she did not agree with the Decision dated 7 September 2019 of Torture Claims Appeal Board. The applicant had clearly written a wrong date for the Board’s Decision as it should be dated 7 November 2019.
Discussion
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 [2018] HKCA 524).
13. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.
14. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 8 July 2019. Hence, the applicant did have a chance to present her case to the Board in person and the Board could conduct a proper inquiry and better understand her situation.
15. The Board found that for the purpose of debt collection, the creditor merely uttered verbal threats to the applicant without physically injuring her (except slapping and pushing her sister-in-law). Since the applicant took out the sim card from her telephone in November 2015, she was no longer contacted by the creditor and her associates.
16. The Board considered that the creditor and her associates in effect had sufficient resources to execute their threats to harm or kill the applicant if they really wanted. However, the behavior of the creditor and her associates indicated to the Board that their real intention was to use threats as a means to force the applicant to repay the debt as soon as possible rather than harming or killing her.
17. The applicant managed to escape from her home and stayed with her relatives before coming to Hong Kong via Mainland China, which showed that her physical, psychiatric and psychological health was good. Hence, the Board found that the sufferings suffered by the applicant did not attain a minimum level of severity.
18. In addition, the Board found that her dispute with the creditor was purely private in nature and lacked involvement, active or otherwise, by a public official or other person acting in an official capacity in Vietnam.
19. In assessing the availability of state protection and the viability of internal relocation, the Board referred to country of origin information (“COI”) from the applicant’s country from different sources. While noting the problem of corruption, the Board found that the Vietnamese government had taken steps to improve the effectiveness of the police, in particular in combating illegal debt collection.
20. Thus, the Board considered that reasonable state protection was available to the applicant on her return, and that there was no evidence to suggest that the police and authorities would not render assistance to her if sought. In fact, the applicant had never sought assistance from the police while she was in Vietnam. It was only her mere speculation that the police would not help her.
21. The Board also found that as an able-bodied person with 12 years’ education and many years’ business experience, the applicant could relocate without undue hardship to other parts of Vietnam, such as Ho Chi Minh City or other places, where she had stayed previously to avoid the creditor. This would further reduce or negate the perceived risks of harm from the creditor and her associates, which were localized in her home area. There was no evidence to show that the creditor had the resources or power to locate the applicant throughout Vietnam. Hence, internal relocation was viable for the applicant.
22. After due consideration of the law and the evidence of the applicant, the Board found that there were no substantial grounds for believing that the applicant would be subjected to any of the proscribed forms of harm if she were to be sent back to Vietnam.
23. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
24. 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.
25. 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 12th 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 the applicant’s 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: 12 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: 12 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 6891/17/4/167/V1230
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 382/17
(Formerly RBCZ 11525/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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