Le Thi Phuong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3834/2019

[2025] HKCFI 1544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3834 of 2019

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 Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Martin Wong:

1.  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.By a Form 86 filed on 23 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Torture Claims Appeal Board (the “TCAB”) dated 13 December 2019 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 29 March 2017 in refusing the Applicant’s non-refoulement protection claim. She named the TCAB as the proposed respondent and also an interested party.

2.I amended the Form 86 on my own motion to name the TCAB only as the putative respondent and the Director of Immigration as a putative interested party.

3.The Applicant requested for a hearing of this application but she was absent at the hearing. I therefore proceeded to deal with this application on paper.

Background

4.The Applicant is a national of Vietnam. She seeks non-refoulement protection on the basis that she will be harmed by her creditor in Vietnam if she is returned. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

6.In her affirmation filed in support of the Form 86, the Applicant only repeated her factual basis for claiming protection and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.As can be seen from the TCAB Decision, all the available evidence was presented to and carefully analysed by the TCAB before the TCAB came to the conclusion to reject the Applicant’s allegations [5-8, 11-25].

8.The TCAB then proceeded to analyse the four applicable grounds under the USM, applying the correct legal principles in each instance, and concluded that none of them was made out [30-45]. The TCAB further concluded that internal relocation was available to her as well [46-49].

9.All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 14^th day of April 2025

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