Pham Thi Thom v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 981/2025

[2025] HKCFI 3140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 981 of 2025

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 K.W. Lung:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 March 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 3 April 2019. Her application was filed on 23 April 2025, which is late for more than 5 years and 11 months. This issue will be dealt with below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with her application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 54, is a national of Vietnam. She is an illegal immigrant and was arrested by police on 10 October 2016. She lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, she will be harmed or killed by members of a triad society over a monetary dispute for the balance of the purchase price of a piece of land she had sold to the members of the triad society (“her enemies”).

5.According to the applicant, she was the owner of a piece of land, which she agreed to sell to her enemies for 1 billion Vietnam currency. Her enemy had paid 800 million Vietnam currency, leaving 200 million, which they refused to pay. For recovering the balance of the purchase price, she had taken her family members to confront her enemies. They had had a fight. One of her enemies was injured and they demanded compensation. She refused to pay. She had reported the matter to police, which only encouraged them to negotiate for settlement, but did not make any investigation into the dispute. She came to Hong Kong in order to avoid her enemies. She was informed by members of her family that her enemies were still looking for her.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Notice of Decision dated 10 Julyu 2017 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 February 2019, the Board conducted an oral hearing.

9.Having considered the applicant’s evidence, the Board did not accept her evidence as to the facts of her claim because there were inconsistencies and contradictions. Besides, the Board considered that internal relocation is viable if she returns to Vietnam. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000981_2025_files/the_Board's_Decision.pdf.

10.The Board dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 23 April 2025 for leave to apply for judicial review of the Board’s Decision.

12.The applicant did not raise any specific ground to challenge the Board’s Decision in her affirmation in support of her application. Nor did she explain her late application.

DISCUSSION

13.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board.”

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 26^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