Pham Thi Vui v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 819/2023 [2025] HKCFI 5692 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 819 of 2023
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Levy:
Observations for the Applicant: Background 1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 May 2023, 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 4 May 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 27 June 2022 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: - 2.In the Form 86, the applicant named the Board and the Director as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be amended accordingly on the court’s own motion. 3.Notwithstanding the fact that both the Board’s Decision and the Director’s Decision were in the Chinese language, this court is satisfied that it is expedient to render the decision in Form Call-1 in English as the Form 86 and the supporting affirmation were both prepared in the English language. 4.The basis of the applicant’s claim was that, if refouled to Vietnam, she would be harmed or killed by the loan shark and his henchmen for an unpaid debt. The 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.The applicant had requested for an oral hearing. On 30 May 2025, the applicant filed an affirmation as well as a letter applying for the withdrawal of the Leave Application. She affirmed that it was safe for her to return home, that she made the application out of her free will and fully understood the consequences of withdrawal. In the circumstances, this court will dispose of the Leave Application on paper. 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. Apart from providing some vague evidence, the applicant’s Form 86 and the supporting affirmation contained no such grounds. 8.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 found that the debt matter was a personal dispute, and that the applicant had not suffered any ill-treatment in the past. The Board found that the applicant failed to establish any of the facts she had asserted. 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. 9.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4]. Withdrawal application 10.Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140. Order 11.The Form 86 be amended accordingly on the court’s own motion. 12.The applicant’s application for leave to apply for judicial review dismissed. Dated the 28th 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 [1] Re Zunariyah [2018] HKCA 14 at §23. [2] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at §142. [3] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. [4] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. |
Cases cited in this judgment