Nguyen, Thi Thao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 599/2020

[2025] HKCFI 3737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 599 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1.  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party, and by replacing “16-03-2020” with “20 March 2020”;

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a national of Vietnam. By a Form 86 filed on 14 April 2020 (“Form 86”), and a supporting affirmation also filed on 14 April 2020 (“the Affirmation”), she sought leave for judicial review.

2.The Applicant sought an oral hearing of her application, but did not appear at such. I have hence dealt with her application on the papers.

3.The Form 86 identified the Judgment, order, decision or other proceedings in respect of which relief is sought as “16-03-2020 DISMIS(sic) HEARING DISMISSED MY APPEAL BY TORTURE CLAIMS APPEAL-BOARD DISMISSED MY PETITION SEEKING JUDICIAL REVIEW”. The Affirmation sought leave to apply “FOR MY NON REFOULEMENT CLAIMS DECISION AGAINST THE DIRECTOR OF IMMIGRATION” and did not contain any exhibits. Neither document set out any grounds for judicial review.

4.There was no hearing on, or decision of, the Director of Immigration (“Director”) or the Torture Claims Appeal Board (“TCAB”) relating to the Applicant on 16 March 2020. Rather:

a.  The Applicant claimed non-refoulement protection on the basis that if she were to be sent back to Vietnam she would be harmed or killed by her creditor, one 阿HUNG;

b.  Her claim was assessed on the grounds of Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 9 December 2019 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/Non-Refoulement Claims Petition Office (“NRCPO”), which held a hearing in relation to the Applicant’s non-refoulement claims on 4 March 2020; and

d.  The TCAB/NRCPO then handed down a decision dated 20 March 2020 (“TCAB Decision”)[5] which rejected the Applicant’s petition/appeal.

5.In the circumstances, and particularly given that the Form 86 refers to a decision of the TCAB that was said to be made in March 2020, I did not understand the Applicant to be seeking leave to commence a judicial review of the Director’s Decision. However, if and insofar as she does so, that application stands only to be rejected and I do so given the existence and implications of the two-tier system, and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

6.I have hence amended the Form 86 of my own motion to reflect the identity of the proper putative respondent and interested party, and the decision in respect of which relief is sought. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

7.The TCAB Decision sets out the Applicant’s background and case as to the incidents underlying her claim for non‑refoulement relief, as well as her immigration and procedural history leading up to the same decision. I have briefly summarised portions thereof above, and will not repeat the contents of the TCAB Decision.

Legal Principles

8.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

9.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

10.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

11.As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

12.However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

13.The TCAB/NRCPO began by setting out the Applicant’s immigration and procedural history (Paragraph 1), her background and case for non-refoulement relief including as to the incidents relied on (Paragraphs 2 to 19), and the order in which the decision-maker would assess the claim (Paragraph 20).

14.The decision-maker firstly assessed the Applicant’s information/testimony as provided, concluding that her testimony was unreliable which meant that her appeal/petition was therefore dismissed (Paragraphs 21 to 27). He then held that even if such had been accepted, the appeal/petition would still be dismissed as on the evidence, her claim that she would be seriously harmed or killed if returned to Vietnam was unsubstantiated, and that even if there was such a risk, it was only confined to her hometown such that internal relocation (including in particular to Hanoi or Ho Chi Minh City) was available to her, and was neither unduly harsh nor unreasonable (Paragraphs 28 to 39). Torture Risk, BOR 2 Risk, BOR 3 Risk, and Persecution Risk were also dismissed having regard to the assessed risk of harm. Accordingly the TCAB/NRCPO confirmed the Director’s Decision (Paragraphs 40 to 56).

15.I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk, and internal relocation, which are all matters primarily within the province of the decision-making body.

16.There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

17.In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

18.The Applicant may make an appointment with my clerk for this decision to be interpreted to her in Chinese, if she wishes.

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