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

HCAL 1980/2024

[2025] HKCFI 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1980 OF 2024

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 21 December 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request a hearing. I shall deal with her application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 54, is a national of Vietnam. She claimed that, if refouled, she would be tortured, including being assaulted, imprisoned or even killed by her creditor called Nguyen Van Tuan (Nguyen).

5.  She came to Hong Kong on 15 November 2022 and engaged in illegal employment, for which she was arrested, convicted and sentenced to imprisonment. She lodged her non-refoulement claim by written representation dated 15 May 2023 for the above reasons.

6.  According to the applicant, in 2001, she and her husband had borrowed a loan of 2 billion Vietnamese currency from Nguyen for their business of grocery and transportation. Because of Covid-19, their business went down and they were unable to pay the monthly interest. Nguyen and his 5 underlings had gone to her premises twice to demand repayment of the loan. On the first occasion, they did not use violence, but had only threatened them to repay the loan. On the second occasion, they assaulted her and her husband. They slapped her face with hands and hit her husband with knife and wooden sticks. They had sustained injuries. They had to move to live in other friends’ places. They finally decided to leave Vietnam and came to Hong Kong illegally. Her husband is being detained in prison; and she in the detention centre of the Immigration Department.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 24 July 2023 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

a. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the applicable risks for the reasons that (i) her claimed level of risk was assessed to be low [11] – [13]; (ii) state protection would be available to her [14]-[19]; and internal relocation was viable [20]-[21].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 21 November 2023, the Board conducted a hearing. The applicant has given oral evidence before the Board.

11.  The Board, having considered the evidence, found that the applicant has not suffered any harm or threats of death or harm from Nguyen; there is absence of consistent pattern of gross, flagrant or mass violation of human rights in Vietnam; state protection, including judicial system is available to her; and relocation to Ha Noi or Nha Trang will be safe for her. See paragraphs 130-135 of the Board’s Decision.

12.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 1 November 2024 for leave to apply for judicial review of the Board’s Decision.

14.  The applicant did not raise any specific ground in support of her application.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … … Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.  Theapplicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Court has no reason to interfere with it.

19.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

POSTSCRIPT

21.  It is clear that this is a relatively simple and straightforward case. The Board has adopted an approach of repetitive and academic analysis of the facts of the case and the Board’s Decision runs to 59 pages.

22.  I have raised this issue in the Postscript of my previous judgment in Re Akinchang Benedicta Balingao [2024] HKCFI 286 that, the Board should take into consideration the costs and time for cases like this one. Any courts below, including the Board should follow the guidelines as laid down by the Court of Final Appeal and should not deviate from them without very cogent reasons. There is no such cogent reason in the Board’s Decision. Nor do I find any for this case. For the sake of saving costs and time, the Board should follow the guidelines accordingly.

23.  I advise that excessive cost incurred should not be allowed if the cost is charged on time basis.