Bui Thi Huong v. Torture Claims Appeal Board

HCAL 305/2020

[2025] HKCFI 1610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 305 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;

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 to withdraw the application for leave to apply for judicial review by way of her affirmation dated 7 April 2025 be refused.

3.   The application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 20 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 17 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/HCAL000305_2020_files/the_Board's_Decision.pdf

2.The Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 September 2019 as she did not make out her claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), and the Board confirmed the Director’s decision accordingly.

Amendments

3.The applicant named both the Board and the Director as the putative respondents and did not name anyone as the putative interested party in Form 86.  This court therefore 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

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 was indebted to a loan shark in Vietnam and feared that the loan shark and his men would kill her if she were to return to Vietnam.

Withdrawal of the Leave Application

6.On 7 April 2025, the applicant filed an ex-parte application by way of an affirmation dated the same date, in which she applies for cancellation of the Leave Application because she wants to return to Vietnam.  Thus, the applicant is applying for withdrawal of the Leave Application.

7.There is no evidence to show that the applicant makes the said withdrawal application other than out of her own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

8.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

9.Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

10.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).

11.The applicant did not provide any ground for her intended judicial review in Form 86 nor in her supporting affirmation dated 4 March 2020.  The applicant merely stated in her affirmation that it was an affirmation for leave to apply for judicial review for her non-refoulement claims decision against the Director.

Discussion

12.It is wrong for the applicant to refer to the decision of the Director in her supporting affirmation, as only the Board’s Decision is reviewable by judicial process and not the Director’s decision.  There are established statutory procedures of appeal from the Director to the Board and the applicant has 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). 

13.Thus, this court will only consider the Leave Application in respect of the Board’s Decision.

14.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).

15.In assessing the applicant’s appeal, the Board held an oral hearing on 24 December 2019.  After due consideration of the evidence and the oral testimony of the applicant, the Board concluded that the applicant was not a witness of truth and did not face any real or substantial risk of any of the proscribed harms under the USM.  The Board had also referred to the then most updated country of origin information for the applicant’s country from different sources and concluded that state protection was available and internal relocation was viable, even if the applicant’s claims were real.

16.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. 

17.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

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

Dated the 25^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