NGUYEN THI NGOC YEN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;          or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

1.  Phuong Bao Ngoc be deleted as an applicant from this application; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Vietnam who arrived in Hong Kong on 9 October 2018 as a visitor with permission to remain as such up to 19 October 2018 when she did not depart and instead overstayed, and was arrested by police more than 7 months later on 27 May 2019. 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 unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Hai Phong, Vietnam. After leaving school she worked as an accounting clerk, married her former husband, and raised a family with a son in her home district.

3.  After her marriage ended in a divorce, the Applicant subsequently formed her own business manufacturing and selling machines parts and equipment, and in maintaining her business she in June 2017 borrowed a loan from a local money-lender with monthly interests payments which she initially managed to make from her business income.

4.  However, her business did not fare well, and in August 2018 when she defaulted with her loan repayments, her creditor started to send men to threaten her, and after being beaten by those men on one occasion with a warning that they would kill her next time if she still failed to repay her loan, the Applicant therefore became fearful for her life.

5.  Subsequently upon the advice of a friend that she should take a trip overseas to ease her fear and anxiety, the Applicant therefore on 9 October 2018 departed Vietnam for Hong Kong for sight-seeing, during which she was however informed by her mother from Vietnam that her creditor’s followers had again come looking for her, and when they could not find her, they then vented their anger on her 2 brothers by beating them violently, and also threatened to kill her when she returned to Vietnam, and so the Applicant was afraid to return to Vietnam and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 July 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 19 July 2019 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”).

7.  In his 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 97 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 or Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

8.  On 30 July 2019, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 28 April 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 November 2020, her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from some creditor over her unpaid debts that caused her to leave her country for sight-seeing in Hong Kong but subsequently overstayed to seek protection, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong until more than 7 months later and only after her arrest by the police, that even if her account of events prior to her departure of Vietnam as regard threats from some creditor over her alleged debts were true that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and 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 upon her return to Vietnam as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

10.  While released on recognizance pending the determination of her claim, the Applicant formed a relationship with a Vietnamese man who was also a non-refoulement claimant in Hong Kong, and on 5 October 2020 she gave birth to their daughter in Hong Kong, and for whom the Applicant also raised a non-refoulement claim based on her own claim as above, and for which the Applicant completed a NCF for her daughter on 21 May 2021 and attended another screening interview before an immigration officer with the same legal representation from DLS.

11.  Meanwhile on 8 December 2020, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision of 27 November 2020, but somehow she also named her daughter as the second applicant notwithstanding the fact that this decision of the Board only concerned her own claim when at that time her daughter’s claim had not even been dealt with by the Director, let alone by the Board, and as such there is simply no legal basis at all for the Applicant to include her daughter’s claim in this application, and as such and on my own motion I have deleted her daughter from this application and accordingly deal with it as regard the Applicant’s claim only, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the Board’s decision without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.

12.  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 his 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.

13.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s 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 decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  I should also mention that, just to complete the picture, the non-refoulement claim of the Applicant’s daughter has subsequently also been rejected by both the Director (Decision dated 14 July 2021) and the Board (Decision dated 8 April 2022) on all the applicable grounds, but that no leave application has been sought by or on her daughter’s behalf for judicial review of either of those decisions.

17.  Moreover, the Applicant recently on 17 October 2025 filed an affirmation requesting to withdraw her application as it is now safe for her (and her daughter) to return to (their) home country.

18.  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 and her daughter to return to their 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