Dao Thi Ngoan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 628/2025

[2025] HKCFI 3309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 628 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 present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 February 2025 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court at the hearing on 11 July 2025.

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 58, is a national of Vietnam. On 15 December 2023, Hong Kong police arrested the applicant for illegally remaining in Hong Kong. The applicant admitted that she had sneaked into Hong Kong by boat on 2 January 2024. She was convicted of the offence and was sentenced to 18 months’ imprisonment. She lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, she will be harmed of killed by her creditor because she was unable to repaid her debt.

The Director’s Decision

5.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”).

6.By way of Notice of Decision dated 9 December 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, the Director considered state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 17 February 2025, the Board conducted an oral hearing for her with an interpreter. She had answered the Board’s questions and given oral evidence. [33]-[46]

8.Having considered the applicant’s evidence, the Board dismissed the applicant’s appeal for the reasons below.

a.  The applicant is not a truthful witness and her evidence is not reliable.[46]

b.  Even if her evidence were accepted, the Board would still dismiss her appeal because she may relocate herself in Vietnam and live safely. [48]-[56] See the Board’s Decision through the hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000628_2025_files/the_Board's_Decision.pdf.

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

9.The applicant has filed Form 86 dated 12 March 2025 for leave to apply for judicial review of the Board’s Decision.

10.The applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

11.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).

12.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she did not think the Board was wrong, but she is in a desperate situation.

13.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.”

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

DISPOSITION

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

Dated the 9^th day of September 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