PHAM THI GA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 800/2022

[2026] HKCFI 3057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 800 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 19 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 12 August 2022 (the “Decision”) dismissing her appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 July 2021 (the “Notice”) refusing her application for non‑refoulement protection. 

2.  The Applicant had requested an oral hearing.  A hearing on 13 May 2026 was scheduled and notice of hearing was sent to him by post to her address as stated in her Form 86 and her up-to-date address as discovered from the Immigration Department on 10 March 2026.  The Notice has not been returned through the post.  The Applicant had never informed the court of any change of address.  There is nothing to suggest that she had not received the letter or had moved.  On the afternoon of the day before the hearing, a court staff attempted to contact her by telephone to remind her of the hearing, but the call on one of the two numbers available was not answered while the other telephone number was out of service.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that it had tried its best endeavour to bring the hearing to his notice.  She did not appear at the hearing.  Having also considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court is satisfied that the leave application may be justly determined on paper without an oral hearing.

The Applicant’s claim

3.  The Applicant is a Vietnamese national, now aged 49.  She had received 7 years’ education and had 28 years’ experience in farming and two years’ experience in seafood farming.  She was arrested by the police on 13 October 2020.  She claimed to have sneaked into Mainland China from Vietnam on 10 October 2020 and then sneaked into Hong Kong on 13 October 2020.  She lodged a non-refoulement claim on 19 November 2020. Her personal background, the factual background leading to the present application, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated in detail.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, she claims, if returned to Vietnam, she will be harmed or killed by a moneylender for being unable to repay the loan she had borrowed from the moneylender.

4.  The Applicant’s case as advanced in her non-refoulement claim form (“NCF”) is as follows.  She started a seafood farming business in August 2018.  She borrowed 600 million Dongs from a moneylender for a term of two years at a monthly interest of 15 million Dongs. There was no definite date for payment of interest.  The Applicant could pay whenever she had funds.  But in July 2019, the moneylender demanded repayment of the loan.  The Applicant pleaded for time and was given a deferment of one year. The Applicant never paid any interest during that one year period.  In early August 2020, the moneylender demanded repayment of the debt within 20 days and threatened to attack her if she did not pay.  Towards the end of August 2020, the Applicant fled from her home village to Hai Duong.  In October 2020, she sneaked into Hong Kong.

The Board’s finding

5.  The Applicant testified before the Board.  In answer to the Board’s question, she said she had no saving, no plans and no experience when she started the seafood farming business.  She started because she heard that people made huge profits from seafood farming.  Her business failed because of several natural disasters which damaged her fish racks.  She had no plans for precaution or protection for her fish racks after the disasters.  She did not have to give collateral for the loan. 

6.  The Board found her evidence vague, general, and unsatisfactory. She could not recall when she borrowed the loan, when she started the seafood farming business and when the moneylender collected the debt.  She was inconsistent as to whether she was threatened once or twice by the moneylender.  She could not produce any objective evidence of the loan, her operation of her seafood farm, the threat and the moneylender’s resource to hunt for her and harm her wherever she resides in Vietnam.

7.  After considering authoritative and credible country of origin information (“COI”), the Board rejected the Applicant’s claim that the moneylender had extensive power and network in Vietnam or had the resources to hunt for and harm her throughout Vietnam.  It found, being an able-bodied woman with her education and work experience, it would not be unduly harsh for her to relocate and work anywhere within Vietnam, especially Ho Chi Minh City, Ha Noi, Da Nang or Nha Trang.  It also rejected her claim that she did not report her problem to the local police because the police was corrupt and she had no money to bribe them.  According to the COI, the Vietnamese government had done much to combat corruption and illegal moneylending.  There is in place a reasonably effective criminal legal system and channels of complaint against corruption.  The Board found adequate state protection available.

8.  The Board noted that the Applicant had at most been verbally threatened twice, had never been actually assaulted, had stayed in Hai Duong for two months in which nothing eventful happened.  On balance, the Board found the Applicant incredible.  It did not accept her account of event.  It found she did not leave Vietnam because the moneylender or his underlings had found her but because she wished to earn more money.  The Board practically rejected the entirety of her account.

9.  Applying the law applicable to non-refoulement protection to the above facts, the Board found there is no real risk that the Applicant will be at risk of any of the proscribed harm if she were removed to Vietnam and that if there is any risk it may be mitigated or avoided by seeking state protection and internal relocation.  It came to the conclusion that the Applicant had failed to establish her entitlement to protection under any of the four applicable grounds under the Unified Screening Mechanism (the “USM”). Hence, it dismissed her appeal.

Grounds for judicial review

10.  The Applicant had advanced three grounds in her Form 86:

11.  First, she submits that if returned to Vietnam, her life will be seriously threatened.  She will be tortured, beaten or even killed because the moneylender and his underlings are cruel and violent.  She also submits that they disregard the law and are willing to kill to satisfy their anger and ferocity.  This is a direct challenge, in the first place, of the Board’s finding of fact that there is no real risk that the Applicant will experience harm, persecution or violation of right to life if she were removed to Vietnam; and in the alternative that state protection and internal relocation are available to mitigate or avoid the risk of harm.  It is not open to the court in an application for judicial review to intervene in such finding of fact by the Board.

12.  Second, the Applicant disagrees with the Director’s suggestion that she could relocate to live in other locations to avoid the moneylender because she could not find employment in the new location owing to her health, personality and the disadvantage she would suffer in the labour market.  For her benefit, the Court assumes that this complaint is directed at the Board.  As was noted by the Board, the issue of internal relocation does not arise because of its finding that there is no real chance that the Applicant will be harmed if returned to Vietnam.  Nevertheless, the Board had considered the issue of internal relocation in paragraphs 93 to 100 of its Decision.   It found the Applicant may be safely relocated anywhere within Vietnam, including in particular Ho Chi Minh City, Ha Noi, Da Nang and Nha Trang.  The issue of her health, personality and her lack of competitiveness in the labour market had not been raised by the Applicant in her testimony.  It is not open to the Applicant to advance these new issues which did not form part of his claim.  For either of these reasons, this ground is irrelevant.

13.  Lastly, the Applicant claims that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is possible for the moneylender and his underlings to find her out and harm him.  The Board had also considered this very issue of risk of harm from the moneylender and his underlings locating the Applicant outside her home area.  In paragraph 99 of its Decision, the Board found there was no objective, independent and reliable evidence that the moneylender and his underlings are able to locate the Applicant within the mass population in Vietnam, particularly in the four cities mentioned above.  In addition, adequate state protection is available.  This ground is also challenge of the Board’s finding of fact, which is impermissible. 

14.  There is no substance in any of the grounds advanced.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision. 

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and COI.  Except for her personal background, the Board rejected almost the entirety of the Applicant’s case. Practically, she has no factual basis to support her claim for protection under any of the applicable grounds under the USM.  Applying the law applicable to non-refoulement protection to the facts it found and the COI, the Board was not satisfied that the Applicant had proved her entitlement to protection under any of the applicable grounds under the USM.  It found further and in the alternative that, such harm if there were any, could be mitigated or avoided by seeking state protection and internal relocation.

16.  The Board’s finding are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

17.  For the above reasons, the Applicant’s leave application is refused.

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