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

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 14 July 2022 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 8 July 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”), refusing her application for non‑refoulement protection. 

2.  The Applicant had requested an oral hearing.  A hearing on 11 March 2026 was scheduled and notice of hearing was sent to her by post on 27 February 2026 to her address as stated in her Form 86, and to her last known address discovered from the Immigration Department on 6 February 2026.  An attempt was made by a court staff on the afternoon 10 March 2026 to contact her by telephone to remind her of the hearing, but the call was not answered.  There is nothing to suggest that the Applicant had not received the notice of hearing or had moved.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to her notice. However, she did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered 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, aged 50.  Her personal background, the factual background leading to the present application, the basis of her claim and 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 here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, the Applicant claims she will be harmed or killed by a moneylender for being unable to repay a debt owing to the moneylender and by her husband for domestic dispute. 

4.  The Applicant’s case is that she borrowed three billion Vietnamese Dongs from a moneylender in March 2017 to start a breeding farming business at a monthly interest of 6 million Dongs.  The loan was taken out under her husband’s name.  After obtaining the loan, her husband spent it on drugs, gambling and womanizing.  The Applicant was unable to pay the monthly interest since April 2019.  Since then the moneylender and his underlings had been to her home on six occasions to demand payment and threaten her with death.  On four of the occasions, she was assaulted.   She did not seek medical treatment for the injuries.  After the first incident, she reported to the police, but the police offered no assistance.  She did not make any report on the other five incidents.  To avoid the moneylender, the Applicant fled to Hong Kong in November 2020.  Since arriving in Hong Kong, she was informed by her sister in Vietnam that the moneylender had been asking her sister for the Applicant’s whereabouts.

5.  In addition, the Applicant claimed that her husband had assaulted her many times within a year or so to force her to sell her house.  After the house was sold, he spent the money on drugs, gambling and women.  Eventually, he deserted the Applicant towards the end of 2018. She lost contact with him since.   She did not report the incidents to the police nor sought medical treatment.   At the hearing, she confirmed that she was no longer afraid of her husband and believed he would not attack her again.

The finding of the Board

6.  The Board considered the Applicant’s evidence consistent and assessed her claim on the basis of the case as she asserted.  It found the injuries she suffered were minor and fell short of the minimum level of; that the moneylender’s intention was to coerce the Applicant to repay and he had no intention to seriously harm or kill the Applicant.

7.  It found the dispute between the Applicant and the moneylender is a private monetary dispute which had no relevance to the interest and/or benefit of the government of Vietnam; that the moneylender and his underlings were non-state actors; and that no public officials or persons able to wield the authority of the government and/or state had any connection with the claim or acquiesced in the ill-treatment of the Applicant.  It found the ill-treatment inflicted on the Applicant did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance and did not arise on account of any of the reasons enumerated in Article 1A(2) of the 1951 Convention relating to the status of refugees and its 1967 Protocol. On the basis of independent and credible country of origin information (“COI”), it found state protection was available.  It was only the Applicant’s own volition not to seek protection from the state or to follow up with her complaint.  On the Applicant’s own admission, she was not at risk of harm from her husband anymore.

8.  Applying the law applicable to non-refoulement protection to the Applicant’s case as she asserted and the Board’s further finding, the Board found the Applicant had failed to discharge the burden of proving her entitlement to protection under any of the applicable grounds.  Hence, the Board dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

9.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2].

Grounds for judicial review

10.  The Applicant did not advance any grounds for judicial review in her Form 86 or supporting affirmation.  She did not attend the hearing and forwent her opportunity to have the Court’s assistance in exploring her grounds of application.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

11.  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 Unified Screening Mechanism (“USM”); the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  It analyzed the evidence carefully and tested it against common sense, inherent probability and the COI.  It made some necessary finding of facts, including availability of state protection and internal relocation.  Then, applying the law applicable to non-refoulement protection under the USM to the above finding of facts, the Board found the Applicant had failed to establish the factual basis to support her claim for 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 for error of law or procedural unfairness or irrationality in the Decision.  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 entitlement to protection as a matter of law.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

12.  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