Ha Thi Oanh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1172/2025

[2025] HKCFI 5600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1172 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 absent in open court;

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 27 June 2024 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 27 September 2024. Her application was filed on 20 May 2025, which is late for more than 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.

The applicant

4.The applicant is a national of Vietnam. She is an illegal immigrant, having entering Hong Kong by boat on 27 August 2023. She was arrested. She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she will be harmed or killed by her creditor, from whom she had borrowed 2 loans of 900 million VND for her land resale business. She was unable to repay the loans. The creditor did not hurt her. Details of her story are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001172_2025_files/the_Board's_Decision.pdf.

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 6 November 2023 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 7 February 2024, the Board conducted an oral hearing. The applicant had given oral evidence and answered the Board’s questions.

8.Having considered the applicant’s evidence, the Board made the findings below.

(1)  Her evidence was incredible and unreliable. She had simply made up her story for her claim. [55]

(2)  Even if her story were believed, the Board would still dismiss her appeal. [56]

(3)  Her chance of being harmed if she returns to Vietnam is low. [62]

(4)  State protection will be available. [65]

(5)  Internal relocation is viable. [69]

9.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

10.The applicant has filed Form 86 dated 20 May 2025 for leave to apply for judicial review of the Board’s Decision.

11.In support of her application, the applicant has, insofar as the Board is concerned, raised the grounds below.

(1)  The adjudicator’s decisions are wrong as she did not consider her right to life.

(2)  The adjudicator had placed too much reliance on the country of origin information without considering her personal background and experience.

(3)  The adjudicator was procedurally unfair, demanding her to respond to questions that she was not in a position to respond.

(4)  The adjudicator should have allowed her appeal.

DISCUSSION

12.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.

13.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).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.The reasons raised in paragraph 12 are her bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision[2].

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

DISPOSITION

18.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 1^st day of December 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