Truong Thi Na v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2236/2020

[2025] HKCFI 4662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2236 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.   The Form 86 be amended on the court’s own motion.

2.   Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.   The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 9 November 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 10 September 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 20 November 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002236_2020_files/the_Board's_Decision.pdf

2.It is noted that the Director’s Decision, the Board’s Decision as well as the Leave Application are in the Chinese language.  Nonetheless, I consider that it is more convenient to render the decision in Form Call-1 in English.  Should the applicant require interpretation of the decision, she should contact my clerk.

3.In the Form 86, the applicant named the Board as the interested party.  As the Director should have been the interested party, the Form 86 shall be amended accordingly in the court’s own motion.

4.The basis of the applicant’s claim was that if refouled, she would be harmed or killed by the loans hark with triad background for an unpaid loan.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

5.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 16 September 2025.  The applicant attended the hearing in person.  After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Discussion

6.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  In the Form 86, the applicant did not provide any grounds.  In the supporting affirmation, the applicant merely repeated her account of events.

8.At the hearing, this court asked the applicant whether she had any grounds she wished to submit in support of the Leave Application.  The applicant only stated that she would like to continue with her non-refoulement claim to seek protection in Hong Kong.

9.As the Courts have repeatedly stated, 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.[3]  In the present case, the Board determined the appeal on paper without a hearing. Whilst it accepted the applicant’s evidence, the Board however found that her past experiences of rape and threats by the loan shark failed to reach the requisite level of suffering.  The Board concluded that there were no real risks of harm.  It further found that state protection and internal relocation were both reasonably available.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court finds the Board’s Decision is arguably erroneous in law, irrational and unreasonable, and procedurally unfair.

No oral hearing

11.In deciding not to hold an oral hearing, the Board had considered the principles stated in ST v Betty Kwan[4] .  Whilst it accepted that the holding of an oral hearing is not mandatory, the Court of Appeal in ST v Betty Kwan held that a decision-maker should be guided by high standards of fairness when making the relevant administrative decision in deciding whether an oral hearing should be held.  In the present case, the Board believed that the applicant’s past ill-treatment (rape and threats of being killed) was unpleasant and a horrible experience, it nonetheless found that the applicant’s suffering did not reach the requisite level of suffering.  This was because the Board found that the applicant had not adduced any or sufficient evidence to show that she had suffered physically and mentally (Board’s Decision [41]).  The Board’s conclusion, in my view, is arguably unfair as it failed to apply a high standard of fairness expounded in ST v Betty Kwan.

12.When deciding not to hold an oral hearing, the Board in the present case should have been alive to the importance of the severity of the applicant’s mental and physical suffering from the past experiences (which the Board accepted in full). This issue would have been pivotal to the Board’s assessment of the risk of harm, especially the degree of mental suffering.  Given the fact that the Board found there was insufficiency of evidence to show the applicant’s level of suffering, the Board should have adopted an active role by holding a hearing to enable the applicant to put her case effectively.  A high standard of fairness does not permit the Board in the present case to “simply sit back and put the [applicant] to strict proof of” her claim : ST v Betty Kwan [39].

13.The Board’s assessment of the insufficient severity of suffering without receiving oral evidence from the applicant is therefore arguably irrational and unfair procedurally.

Erroneous applying common sense in assessing risk of harm

14.In assessing the applicant’s claim solely on paper, the Board appears to have resorted to its common sense by using assumptions rather than the actual evidence.  In [19] of the Board’s Decision, the Board referred to the applicant’s leaving Vietnam one day after the attacks by the loan shark; and surmised that the applicant did not have any physical and mental health issues.  This conclusion was totally unsupported by any evidence.  It was only the Board’s application of its common sense.  Thus, it would appear that the Board had erroneously applied its subjective common sense.  The applying of a decision-maker’s own common sense in non-refoulement claims has been disapproved in ST v Betty Kwan[5][1] (supra) at [43].

15.For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.

Conclusion

16.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

17.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision on the above grounds, and direct that she shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Order

18.The Form 86 be amended on the court’s own motion.

19.Leave is granted to the applicant to issue a judicial review application                 against the Board’s Decision.

20.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Dated the 10^th day of October 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