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

HCAL 346/2021

[2025] HKCFI 5647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 346 of 2021

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 (Non-refoulement Claims) Philips Wong:

1.  Form 86 be amended as follows:- the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 15 March 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 11 March 2021 (the “Board’s Decision”).

2.In the Form, the Applicant named the Board as both the proposed respondent and the proposed interested party.  As it is trite that the Board should be the proposed respondent and the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

3.The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 27 October 2025 and the Applicant attended in person.  At the hearing, the Applicant indicated that she still owed debt and her family is unable to repay the debt for her.  She said she is willing to go back to her country once the debt is settled, and urged the Hong Kong Government to let her stay in Hong Kong for the time being.  Apart from the aforesaid, the Applicant had nothing to say in respect of the Leave Application.  

Background

4.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

5.The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, 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.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.The Applicant did not provide any grounds in support of the Leave Application in the Form.  In the supporting Affirmation, the Applicant simply repeated her claim before the Board and stated that her creditor has threatened to kill her if she does not settle the debt.

7.I have considered the Board’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board was entitled to reject the claim based on the evidence and the reasons provided (in particular see §§34-37 of the Board’s Decision).  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

8.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.

Conclusion

9.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 25^th day of November 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