Nguyen Thi Thanh v. Torture Claims Appeal Board

HCAL 306/2020

[2025] HKCFI 1548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 306 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 in open court;

Order by Deputy High Court Judge Michael WONG:

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 23 January 2020 and filed on 4 March 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 22 January 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/HCAL000306_2020_files/the_Board's_Decision.pdf

2.The Board rejected the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 November 2019 and confirmed the Director’s decision in rejecting the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”).

Amendments

3.The applicant named both the Board and the Director as the putative respondents but did not name any putative interested party in Form 86, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

The applicant’s case

4.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.

5.In sum, the applicant claimed for non-refoulement protection because she feared being harmed or killed by a creditor in Vietnam, as she could not repay the loan.

Oral hearing

6.The applicant requested for an oral hearing of the Leave Application, and her case was heard on 8 April 2025.

7.At the hearing, the applicant said that she wanted to stay in Hong Kong as she could not repay the debts in Vietnam. For fear of threats from the creditor, her 3 daughters have moved to stay with her relatives. Her daughters wanted her to stay in Hong Kong too, as the applicant and the daughters had no home to go back to in Vietnam.

Grounds for judicial review

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

9.However, the applicant did not advance any ground for her intended judicial review in Form 86 or her supporting affirmation dated 4 March 2020. She simply stated in her supporting affirmation that the affirmation was for leave to apply for judicial review for non-refoulement claims decision against the Director of Immigration.

Discussion

10.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.

11.The applicant did not advance any grounds for her intended judicial review. The allegation that she would have nowhere to stay in Vietnam cannot amount to a ground for judicial review, as the Board did consider viability of internal relocation in the Board’s Decision. The Board concluded that there was no evidence to suggest that the creditor was in any way related to the authority so that he could have the resources to locate the applicant had she stayed in any city other than her own in Vietnam. This court finds nothing wrong with this conclusion.

12.In the absence of any proper grounds for the Leave Application, this court could only review the Board’s Decision by scrutinizing it for errors of law, procedural unfairness and irrationality.

13.In assessing the appeal by the applicant, the Board held an oral hearing on 10 January 2020 and carefully considered all the evidence and the applicable grounds under the USM.

14.The Board found that the matter between the applicant and her creditor was clearly a case of loan dispute, and the creditor had never done anything to harm the applicant. The evidence indicated to the Board that the creditor was not serious in carrying out the threat to kill at all, and that the threats were merely measures to pressurize the applicant to repay the loan.

15.After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant failed to prove that she would be subjected to torture, ill-treatment, risk of right to life, or risk of persecution. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

16.The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

17.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).

18.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 error 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.

19.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

20.For reasons aforesaid, the Leave Application is dismissed.

Dated the 16^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