MAI THI THUY v. TORTURE CLAIMS APPEAL BOARD

HCAL 652/2022

[2025] HKCFI 5459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 652 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 35-year-old national of Vietnam who entered Hong Kong illegally on 20 December 2020 and was arrested by police on the following day of 21 December 2020. 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 over her outstanding debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Nga Vinh Niga Son Thanh Hoa, Vietnam before moving with her parents to Nguyen Lam Phuong, Quan Phu Nhuan, Ho Chi Minh City.  After leaving school she ran her own seafood business in her home district to make her living.

3.  In January 2020, for maintaining the cash flow of her business she borrowed a loan from a local money-lender with monthly interest payments which she initially managed to make from her business income.

4.  However, she subsequently lost her business in November 2020 due to the Covid-19 pandemic, and when she defaulted with her loan repayments, her creditor started to send men to threaten her, and after being beaten by those men on 2 occasions, the Applicant became fearful for her life, and so on 15 December 2020 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 2 August 2021 and attended screening interview before the Immigration Department with legal.             

5.  By a Notice of Decision dated 1 November 2021, 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 her 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 followers 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 Hanoi where it would be difficult if not impossible for her creditor to locate her.

7.  On 11 November 2021, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but shortly thereafter on 14 January 2022 she in writing to the Board requested to withdraw her appeal, and upon being satisfied that her request was freely sought, that she understood the consequences of the withdrawal, and that she had good reason for her proposed withdrawal of her appeal in that she considered it safe for her to return to her home country, the Board accordingly by a letter dated 17 January 2022 directed that her appeal be withdrawn and that the Director’s decision be confirmed.     

8.  Some 6 months later on 25 July 2022 the Applicant filed a Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date other than some bare assertions unsupported by any relevant or necessary corroborating evidence that internal relocation within Vietnam would not be feasible for her due to the many difficulties and obstacles that she would have to face in the new location as her health is not good, and that with nationwide social network of the money-lenders that she would not be able to avoid being located by her creditor.

9.  Section 37ZR of the Immigration Ordinance, Cap 115 provides that a person aggrieved by a decision of the director or an immigration officer rejecting her torture claim or non-refoulement claim under the 2-tier Unified Screening Mechanism (“USM”) must first appeal to the Board, which the Applicant did by lodging her appeal on 11 November 2021, but which as noted above was subsequently withdrawn by the Board at her request and upon her confirmation that it was safe for her to return to her home country.

10.  Somehow 6 months later the Applicant apparently had a change of mind about her intended challenge of the Director’s decision but without providing any explanation or reason for so doing, nor is there apparently any attempt by her to first apply to the Board to re-open or re-instate her appeal.  Nevertheless, in the absence of any valid reason or supporting evidence from the Applicant, it seems to me unlikely that such an application would succeed before the Board, and accordingly I shall deal with her present application before me as is, i.e. for leave to apply for judicial review of the Director’s decision.         

11.  However, as noted above that the Applicant has failed to put forward any proper ground for her intended challenge in her Form or affirmation other than her bare assertions that neither state protection nor internal relocation alternatives as found by the Director to be available to her upon her return to Vietnam would be feasible in her situation, but without any relevant details or particulars or elaboration in support of her such bare assertions, and which even if true would not in my view place her in a worse situation than anywhere else outside her home country.  Accordingly, I do not find any of them to assist the Applicant’s case in any way, or that they are reasonably arguable for her intended challenge.

12.  As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in the decision being clearly and properly identified by the Applicant with relevant elaborations, I do not find any reasonably arguable basis for her intended challenge of the Director’s decision.

13.  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 her 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.

14.  In the Applicant’s case, the fact is that it has been correctly established by the Director in her decision 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.

15.  Having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law in the decision or any procedural unfairness in the Applicant’s process before the immigration officer, or any failure to apply high standards of fairness in the consideration and assessment of her non-refoulement claim.

16.  Moreover, the Applicant recently on 21 October 2025 in writing requested to withdraw her application as it is now safe for her to return to her home country.

17.  In the premises, 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