Do Thi Liem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1176/2020

[2025] HKCFI 3452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1176 of 2020

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 the Applicant being absent at the hearing in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 15 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 12 June 2020 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named the Board as both the proposed respondent and the proposed interested party.  As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 18 July 2025 (the “Hearing”) but the Applicant was absent. Nevertheless, I will consider the Leave Application on paper.

Background

4.The Applicant’s background, the basis and history of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same herein.  The hyperlink to the Board’s Decision is included below[1] for reference. In essence, the basis of the Applicant’s claim is as follows:-

(1)   She formerly worked as a goods inspector in a transportation company. In the course of her employment in 2016, she discovered that one of the customers known as Nguyen Khac Vu (“Vu”) was involved in drug trafficking.  The Applicant made a report to the police about Vu’s illegal activities but to no avail.

(2)   The Applicant fears that, if she returns to Vietnam, she would be seriously harmed or killed by Vu or his associates in retaliation for her report to the police as Vu was a member of the triad.

Discussion

5.Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23).  Hence, I will set out my brief reasons for my decision below.

6.It is trite that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

7.It is also well established that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

8.In the Form 86 and her supporting affirmation, the Applicant only repeated her factual account but did not provide any specific grounds in support of the Leave Application despite having been expressly requested to do so in the Form 86.

9.Notwithstanding the above and in the interest of fairness, I have considered the Board’s Decision carefully. In my view, the Board was entitled to find against the Applicant:-

(1)   Having considered the correct legal principles (at §§32-44), relevant Country of Origin information (“COI”) (at §§45-53) and after a detailed analysis of her evidence (at §60), the Board was entitled to reject the Applicant’s claim given that her factual account was implausible and incredible. For example, as noted by the Board (at§60), according to the Applicant, she was assaulted by Vu’s associates on her way to making a report at the police station. Yet, during this assault, no attempt was made by the assailant to seize the Applicant’s mobile phone which (according to her) contained the crucial incriminating evidence and her act of photographing the alleged drugs was seen by her colleague (who presumably tipped off Vu).

(2)   I see no basis to interfere with the Board’s assessment that the risk of serious harm was not significant given that even on the Applicant’s own case, Vu and his associates have never actually carried out their threat to kill or cause serious harm to the Applicant or her mother despite having numerous opportunities to do so (at §§61, 66).

(3)   The Board was entitled to find that state protection would be available in any event (§§63-64 of the Board’s Decision) given the availability of a witness protection mechanism under the Criminal Code of Vietnam. It is also speculative for the Applicant to allege that the Vietnam police would be under the influence of Vu.

(4)   Finally, I do not see any basis to challenge the Board’s finding that reasonable internal relocation alternatives are available (§§85-87). After all, Vietnam is a large country with a population of over 90 million. It would not be unreasonable for the Applicant, who is an able-bodied adult with reasonable working experience to relocate to other large cities in Vietnam to stay away from Vu.

10.In my judgment, the Board’s Decision satisfies the enhanced Wednesbury test. It is not irrational. 

11.I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

Conclusion

12.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 15^th day of August 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