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

HCAL 1586/2024

[2025] HKCFI 694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1586 of 2024

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

Following;

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

1.   Leave to amend the Form 86 be granted; and

2.   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 16 September 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) dated 28 August 2024. 

2.  According to the available documents, the Director had not made any decision relating to the Applicant dated 28 August 2024.  Instead, the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) had made a decision on that date  (the “2024 Decision”) dismissing her appeal against the decision of the Director in his notice of decision dated 27 September 2017 (the “Notice”) refusing her non-refoulement application.  At the hearing, after ascertaining that the Applicant’s intention was indeed to seek a review of the 2024 Decision of the Board dismissing her appeal against the Director’s Notice, the Court granted leave to amend the Form 86 to reflect the Applicant’s true intention.

Background

3.  The Applicant is a Vietnamese national, now aged 50.  She had previously sneaked into Hong Kong and was deported back to Vietnam on 24 October 2013 under a deportation order after serving a fifteen months’ sentence for remaining in Hong Kong illegally and for possession and use of a forged identity card. 

4.  On 27 November 2014, the Applicant sneaked into Hong Kong again. She surrendered to the Immigration Department on 15 January 2015, and made a non-refoulement claim on the same day.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. Her claim was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s decision dated 14 September 2018 (the “2018 Decision”). She then successfully obtained leave from this Court to quash the 2018 Decision and for her appeal against the Notice to be re-heard before a differently constituted Board.  After a re-hearing, the Board issued its 2024 Decision to dismiss her appeal.  She now seeks leave to apply for judicial review of the 2024 Decision.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the torture claim form (the “TCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, the Applicant claims that if returned to Vietnam, she will be harmed or killed by a moneylender (the “moneylender”), for not being able to repay her outstanding loan. 

6.  The Applicant was born in Bac Giang Province, Vietnam.  She had received three years’ formal education and had 26 years’ farming experience.  She had a daughter born with her former partner.  In 1991 or 1992, she started a relationship with a new partner (the “partner”) and gave birth to a son.  She is now separated from her partner because of her loan problem.  Her widowed mother, two siblings and children are now living in Vietnam.

7.  The Applicant claimed that she and her partner decided to operate a livestock farm near their home in June 2010.  To finance the project, her partner borrowed 20 million Vietnamese Dong (“VND”) from a bank and she borrowed 60 million VND from a moneylender with triad background at the monthly interest rate of 10%.  The principal had to be settled within six months. 

8.  In the same year, they used the money borrowed for livestock farming.  They were able to pay the monthly interest during the first two months.  A plague occurred in their farm in the winter.  Almost all of the livestock died.  Her partner sold the remaining cows and lost the proceeds of sale in gambling.  Hence, they were unable to pay the monthly interest.  One morning after Lunar New Year in 2011, the moneylender and his three associates went to her home to demand repayment.  She begged for time to pay.  The moneylender agreed, but threatened to kill her if she could not settle the loan next time they came to collect the debt.  She did not report the incident to the police for fear of retribution by the moneylender. 

9.  In 2011, she separated with her partner because of the loan issue.  She left her home town and lingered in different places in Huyen Yen The.  Eventually, she went to Mong Cai to stay at her friend’s place for two months.  At the suggestion of her friend, she sneaked into Dong Xing, China and took up employment.  In mid-2012, she learned about better employment opportunities in Hong Kong.  She returned to Vietnam from Dong Xing and then re-entered Dong Xing legally with her Chinese visa, travelled to Shenzhen and then sneaked into Hong Kong.  As mentioned in the preceding section, she was repatriated in October 2013. 

10.  Upon her repatriation, she learned from her mother that the moneylender was still looking for her.  She believed the police would not protect her from the moneylender because they are corrupt.  She does not think internal relocation viable, as the moneylender will be able to locate her anywhere within Vietnam.  Thus, on 27 November 2014, she sneaked into Hong Kong again and then made a claim for non-refoulement protection.

The finding of the Board

11.  The Applicant testified before the Board.  The Board found glaring discrepancies between her evidence in the TCF and her testimony relating to the centrepiece of her claim.  In the TCF, she said she had taken out the loan for operating a livestock farm raising cows.  However, she told the Board that she operated a livestock farm raising 2,000 chickens.  When confronted with the inconsistency, she said that she operated a chicken farm while her partner’s father operated a cow farm.  She maintained that she was telling the truth in her oral testimony.  As the core of her case is that the farm was struck by a plague killing most of her cows and that her partner sold the remaining cows and lost the proceeds of sale in gambling which led to her problem with the moneylender, she could not have messed up with the type of livestock raised in her farm.  The Board did not accept her explanation.  The Board found the discrepancy so fundamental that it significantly undermined her credibility.  The Board was also not satisfied with her explanation that she need such a huge sum of 80 million VND to operate a chicken farm. 

12.  The Board considered it incredible that the Applicant and her partner would have ventured into such a large-scale chicken farm business without any form of consultation, planning or survey.  It also found it unreasonable and incredible that the Applicant would have borrowed such a large sum of money from a moneylender with triad background and charging such an exorbitant interest.  On the other hand, the Board also found it incredible that the moneylender did not ask for any security or collateral before lending her 60 million VND or granted her extension of time to pay without specifying the deadline.  For the reasons above, the Board found the Applicant incredible and rejected her evidence in its entirety.

13.  On the basis of objective country of origin information (“COI”), the Board accepted that there are police failures and corruption in Vietnam.  However, the same COI also suggested that there are objective indications that the Vietnamese government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police.  The COI also indicated that it is a well-established state policy to take strong action against moneylenders and illegal debt collections.  Hence, the Board was satisfied that reasonable state protection is available to the Applicant in Vietnam.  In addition, the Board considered that as an able-bodied person, the Applicant could relocate to other parts of Vietnam to avoid the perceived risks from the moneylender, which are localised in her home area.

14.  The Board therefore came to the conclusion that there could not possibly be any substantial grounds for finding that the Applicant will face a real risk of ill-treatment if refouled to Vietnam.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds. Hence, it dismissed her appeal against the decision in the Notice.

Legal principles applicable to judicial review

15.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

16.  At the hearing, after the above legal principles have been explained to the Applicant, she confirmed she had no complaint about errors of law, procedural unfairness or irrationality in the Decision.  However, in her Form 86, she advanced the following five grounds:

(1)   the Director’s decision is unfair and unreasonable;

(2)   the Director failed to give proper weightage to the presence of state acquiescence;

(3)   the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case;

(4)   the Director was procedurally improper and unfair when assessing her explanations and asking questions that she was not in a position to respond; and

(5)   the Director’s attitude was unfair.

These grounds are all directed at the Director.  As the Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, for the Applicant’s benefit, the Court assumed that all grounds are directed at the Board.   The Applicant confirmed that the grounds were prepared by her friend on the basis of the information she provided.  She said she would be able to answer the Court’s questions relating to those grounds.  The Court then went through the grounds with her one by one and asked her for particulars. 

Ground (1): unfairness and unreasonableness

17.  The Applicant was unable to provide particulars of the unfairness and unreasonableness alleged.  All that she could submit was that she could not return to Vietnam because of the outstanding debt, her life would be in danger in Vietnam and all members of her family had left Vietnam.  She was merely reiterated the facts of her case.  Indeed, as noted in the preceding section she had confirmed to the Court that she had no complaint about unfairness or unreasonableness. Insofar as these particulars are treated as grounds of application, they amount to direct challenge of the Board’s finding of fact, which is not permissible.

Ground (2): failure to give proper weight to the presence of state acquiescence

18.  The Applicant complains about the Board’s failure to give proper weight to the presence of state acquiescence.   However, the particulars she gave are that she lived in the outskirt area far away from the police station; it was difficult to seek police assistance; the police are corrupt and she had no money to pay bribe.  None of these particulars, even if they were factually correct, could support a claim that the ill-treatment were inflicted on her with state acquiescence.  In fact, her arguments were wholly rebutted by the COI relied on by the Board.

Ground (3): failure to give proper weight to such argument and such COI supporting the Applicant’s case

19.  The Applicant was unable to give any particulars of the “such argument” and COI.  She had no argument or submission to refer this Court to.  She said she never raised such issues and that this ground was put up by her friend.

Ground (4): procedural impropriety and unfairness

20.  The Applicant said she answered all the questions asked by the Board honestly and everything in support of her case was written in the NCF, but she was disbelieved.  Impliedly, she was alleging that it was procedurally improper and unfair to reject her claim for non-refoulement protection.  These arguments as such are not particulars of procedural impropriety and unfairness.  The Board had considered all the evidence presented by the Applicant and made a finding that she was not credible.  It rejected her evidence in its entirety and hence found she had failed to prove the factual basis to support her claim for non-refoulement protection under all four applicable grounds.  These are finding of facts solely for the Board.  The Board also gave full reasons for its finding.  This ground is a direct challenge of the Board’s finding of fact which is impermissible. 

Ground (5): the Board’s unfair attitude

21.  The Applicant admitted she had no complaint about the Board’s attitude.  She said she had not advanced such ground of application.

Overall scrutiny

22.  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 properly, tested it against common sense and inherent probability.  It found the Applicant incredible and gave reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM.  These 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 on 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 his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  For the above reasons, the Applicant’s leave application is refused.

Conclusion

23.  For the above reasons, the 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]