CAO THI THUY LIEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1961/2020

[2026] HKCFI 2429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1961 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 4 September 2020 and filed on 29 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 31 August 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001961_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection had no merit in respect of all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 June 2020, which rejected the applicant’s non-refoulement claim.

Amendment

3.  The applicant named the Board and the Director as the putative respondents but did not name any putative interested party in Form 86.

4.  In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or killed by her creditor, Ngo Van Hung (“Ah Hung”), due to her inability to repay a loan of 800 million Vietnamese Dong (and its related interest) borrowed from Ah Hung.

Disposal on paper

8.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.  The applicant did not advance any valid ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 29 September 2020.

Discussion

11.  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 [2018] HKCA 524).

12.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

13.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 17 August 2020. The applicant was present and was given the chance to present her case to the Board in person.

14.  As can be seen from the Board’s Decision, the Board had duly considered the applicant’s claims and found that the applicant had not made out a case for non-refoulement protection for reasons that were laid out in paragraph 21 of the Board’s Decision. In gist, the Board found that the applicant had never been tortured in Vietnam, she came to Hong Kong to work and was only arrested by police after 4 years.

15.  In respect of the applicant’s claim on all the available grounds under the USM, the Board considered that the applicant’s dispute with the creditor was only a loan dispute. No government officials had ever been involved. The applicant had never been inflicted with any ill-treatment or injury within the definition of torture under section 37U(1) of the Immigration Ordinance, nor had the applicant’s sufferings attained a minimum level of severity. The applicant’s fear from the creditor did not fall within the meaning of persecution either.

16.  Moreover, the Board found from country of origin information (“COI”) that although corruption did exist in the police force and the authorities in Vietnam, the Vietnamese government had undergone reforms with positive results. Further, there were avenues to seek justice in Vietnam. The Board was of the view that state protection would be available to the applicant upon her return to Vietnam.

17.  The Board also found that there should be viable options for the applicant to settle at an alternative place in Vietnam. The Board found from all the evidence that Ah Hung was just a local money lender who had no connection with other triad societies or government officials. His sphere of interest was at best within Haiphong City. The Board was satisfied that it would not be unduly harsh for the applicant, being able-bodied with 12 years of education and a few years of work experience, to relocate to other parts of Vietnam and to make a living to avoid Ah Hung.

18.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

19.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

20.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

21.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

22.  For reasons aforesaid, the Leave Application is 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