NGUYEN THI THANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 898/2020

[2025] HKCFI 5303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 898 of 2020

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

1.  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

2.  The application for leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 14 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office’s decision dated 4 May 2020 (“the Board’s Decision”), confirming the Director of Immigration (“the Director”)’s decision dated 7 November 2019 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s personal background, her case, and her claims that she would be killed by her creditor in Vietnam if returned, together with the relevant immigration and procedural history, were set out in the Board’s Decision.  It is not necessary to repeat them here, and for completeness’ sake, reference can be made to that decision, the hyperlink to which is included below[1].  Unless otherwise specified, I shall adopt the abbreviations and descriptions used by the Board below.

Discussion

3.  The Applicant has not established any error of law, procedural unfairness, or irrationality in relation to the Board’s Decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142).  Based on the findings of fact set out below, and bearing in mind the enhanced standard required by law in decision-making (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14), I am not satisfied that any such issues arise:

(1)  The Board held that the ground based on Torture Risk was not made out.  It found no evidence that the creditor or his associates were public officials, nor that the Applicant had any dealings with them in an official capacity.  Although the Applicant claimed to have reported the matter to a local police station, there was no indication that the report was entertained, and she did not escalate the matter to any higher authority despite that failure. The Board concluded that the State had no knowledge of the alleged loan or the violence inflicted by the creditor.  The Applicant was not targeted by the State or its agents, and nothing in the case suggested any act or acquiescence by the State or a public body in the alleged harm.   

(2)  Despite the threats allegedly made against the Applicant and her family, the violence inflicted by the creditor was limited.  She was given time to raise funds for repayment, and physical harm was only said to have occurred during the second visit.  Toward the end of the hearing before the Board, the Applicant indicated that she remained willing to repay the debt.  The creditor’s motive to harm her appeared low.  There were no substantial grounds for believing that the Applicant would face serious harm or severe ill-treatment upon return.  The State was capable of providing effective protection, and internal relocation remained a viable option. Accordingly, she failed to establish a claim under BOR 3 Risk. 

(3)  The present case arose from an outstanding private loan.  While the creditor may continue to pursue repayment, there was limited motive for him to cause the Applicant serious harm, let alone kill her.  Additionally, effective State protection was available, and internal relocation remained a viable option.  As such, the Applicant failed to establish a real and substantial risk to her life.

(4)  There was nothing to establish the existence of a Convention Reason, such as race, religion, nationality and membership of a particular social group or political opinion.  The Applicant was pursued solely by a private creditor over a small debt dispute.  The matter had no connection to State authorities or to a significant segment of the country’s population.  Accordingly, the claim under Persecution Risk was also not made out.

4.  The Board was primarily responsible for assessing the evidence.  In the absence of any public law errors, the Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

5.  For these reasons, the Applicant’s intended application for judicial review of the Board’s Decision is not reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).  Instead of allowing the Applicant to withdraw the Leave Application, as indicated during the oral hearing before me, I make an order that it be dismissed.

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