LO THI UN v. TORTURE CLAIMS APPEAL BOARD

HCAL 984/2021

[2025] HKCFI 5706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 984 OF 2021

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;

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 entered Hong Kong illegally on 20 July 2019 and was arrested by police on 21 July 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 the family of her former girlfriend for causing her girlfriend’s death due to their joint suicide attempt and/or discrimination or persecution by the Vietnamese society over her sexual orientation. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Xa Chieng Pac, Huyen Thuan Chau, Tinh Son La, Vietnam. After leaving school she assisted in her family’s farming in her home district.

3.  Since very small she already discovered that she likes girls instead of boys, but was afraid to tell her parents until about 2016, but her parents rejected her and drove her away from home.

4.  In 2017 she met and formed a relationship with her girlfriend Chien from the same neighborhood, but their relationship was opposed by both of their families, and after one occasion when they were beaten by some members of her girlfriend’s family, they decided to commit suicide together by swallowing drugs, and as a result Chien died from drugs overdose but the Applicant was rescued and taken to the hospital and survived.

5.  Upon her release from hospital, the Applicant stayed in a friend’s place, but later when she heard that her girlfriend’s family were looking for her everywhere to kill her in revenge for Chien’s death, the Applicant became fearful for her life and so on 15 July 2019 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 30 August 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 12 November 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 girlfriend’s family upon her return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her girlfriend’s family to seriously harm or kill her other than angry words and empty threats, that in any event it was a private dispute between her and her girlfriend’s family 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 Ho Chi Minh City where it would be difficult if not impossible for her girlfriend’s family to locate her, while Vietnam is a society that has accepted same sex activities and allows same sex marriages as well that it is not accepted that the Applicant would face any real risk of discrimination or persecution arising from her sexual orientation upon her return to Vietnam.

8.  On 20 November 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 30 June 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 June 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board accepted the Applicant’s claims of being a lesbian and her fear of being harmed by her former girlfriend’s family and/or discrimination and persecution by the Vietnamese society but found no reliable evidence of any real intention of her girlfriend’s family to seriously harm or kill her other than just angry words and empty threats arising from her girlfriend’s suicide, that in any event it was a private dispute between her and her girlfriend’s family 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 girlfriend’s family, while relevant COI show that Vietnam is a society that is tolerate to same sex conducts and activities and even allow same sex marriage that it is not accepted that the Applicant will face any real risk of discrimination or persecution in Vietnam that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 12 July 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she claimed to be in fear of harm from some creditor over some debts of hers her debts never raised before in her claim before the Director or the Board and without any mention of any real fear arising from her alleged sexual orientation, 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.

11.  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.

12.  In the Applicant’s case, the Board rejected her claim 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 as well as relevant COI that show tolerance towards same sex conducts and activities by the Vietnamese society, 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.

13.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm from her girlfriend’s family 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.

14.  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.

15.  Moreover, the Applicant recently on 23 October 2025 filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country.

16.  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