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

HCAL 2266/2020

[2025] HKCFI 4825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2266 of 2020

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

Following;

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 28 December 2017 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 28 March 2018. Her application was filed on 16 November 2020, which is late for more than 2 years and 7 months. This issue will be dealt with below.

2.The applicant did not request an oral hearing.

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.

4.The Board’s Decision is in Chinese. The applicant has filed her affirmation in support of her application in English. This Form CALL-1 is in English for her convenience.

The applicant

5.The applicant is a national of Vietnam. On 18 November 2015, she sneaked into Hong Kong from Shenzhen and was arrested by police. She lodged a non-refoulement with the Immigration Department on the basis that, upon refouled, she will be harmed or killed by her creditor, from whom she had borrowed 250 million VND for her seafood farming. She was unable to repay her loan. Her creditor had threatened to kill her. The facts of her claim are set out in the Board’s Decision. See hyperlink

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002266_2020_files/the_Board's_Decision.pdf.

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 Notice of Decision dated 21 March 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. Having considered the context of the appeal, the Board decided that if was unnecessary to hold an oral hearing for the disposal of the appeal.

9.Having considered the evidence, the Board found the facts below.

(1)   There was no evidence to show that the Vietnamese government was unable or unwilling to provide protection to the applicant. [38]

(2)   There was no evidence to show that the applicant had suffered serious physical or mental injuries that answered the requirements under BOR 3 risk. [44]

(3)   There was no evidence to show that the applicant will be subjected to the risk of persecution. [50]

(4)   Internal relocation is viable. [54]

10.For the above reasons, 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 16 November 2020 for leave to apply for judicial review of the Board’s Decision.

12.The applicant did not raise any specific ground in support of her application to challenge the Board’s Decision. 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. The Board was entitled to assess the appeal without a hearing under the Ordinance.[2]

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 has failed to raise any valid ground to challenge the Board’s Decision.

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

DISPOSITION

19.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 22^nd 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