LE THI NUI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2379/2019

[2025] HKCFI 353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2379 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 9 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 8 January 2025. 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 50, is a Vietnamese. She last entered Hong Kong illegally on 3 December 2016 and was arrested by the police on 7 December 2016. The applicant made a non-refoulement claim on 20 December 2016. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor (“the creditor”), who had triad background, because she failed to repay the loan owed to him.

5.  According to the applicant, she took out a loan from the creditor in February 2013 to startup her poultry business. In September 2016, all her chickens and ducks died in a plague. She therefore suffered a great loss and was no longer able to repay her instalments.

6.  Between October 2016 and November 2016, the applicant was assaulted thrice by two underlings of the creditor (“the two underlings”). During the final incident, she was threatened with being sold to China if she continued failing to repay her loan. Besides physical assaults, the two underlings had also verbally threatened to kill the applicant once. The applicant had neither sought medical treatment for her injuries nor reported the assaults to the police.

7.  Subsequently, the applicant fled to South Vietnam as she was worried about her safety. Eventually, she left Vietnam illegally for China on 2 December 2016 and then sneaked into Hong Kong from Shenzhen the following day.

8.  The applicant had never sought assistance from the police because she believed that they would not intervene in private disputes. She also considered internal relocation not viable because the creditor could utilise his triad network to locate her anywhere within Vietnam.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 18 August 2017 (“the Director’s Decision”).

The Director’s Decision

10.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the low intensity and frequency of past ill-treatment from the creditor and his underlings indicated that they had no real intention to seriously harm or kill the applicant [11]-[12]; (ii) the creditor was not as powerful as claimed by the applicant [13]; (iii) state protection would be available [14]-[16] and (iv) internal relocation would be viable [17]-[23].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 13 June 2019, the Board conducted a hearing.

13.  The Board found the applicant’s evidence about her background inconsistent [99]-[104]. Regarding the loan, the Board considered it implausible that the creditor would lend such a large sum of money to the applicant for starting up her business, given her background, working experience and past income [106]-[113]. The interest rate charged by the creditor was also inconsistent with the country of origin information [114]-[116].

14.  In any event, the claimed ill-treatments failed to reach the requisite level of severity [117]-[119], [176]-[177] and the fact that the applicant failed to seek non-refoulement protection in China also damaged her credibility [120]-[122].

15.  The Board found the applicant not credible and that her claims could be given no credence. In light of the applicant’s background, employment history, past income and lack of basic knowledge relating to her business, the Board did not accept that she had borrowed a large sum of money from the creditor to startup a business and considered this simply to be a fabrication [126]-[130], [173]-[175].

16.  Based on such findings and given that there was no evidence of involvement from the Vietnamese government in the matter while the claimed ill-treatments also failed to reach the requisite level of severity, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [137]-[159], [182]-[185]. In any event, state protection [131]-[135], [178]-[180] and internal relocation [160]-[172], [181] would also be available.

17.  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

18.  The applicant has filed Form 86 dated 16 August 2019 for leave to apply for judicial review of the Board’s Decision.

19.  In her affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

20.  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).

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

22.  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.”

23.  The applicant has raised no valid reason to challenge the Board’s Decision and there is no reason for this Court to interfere with the Board’s finding of the facts.

24.  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

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