Ta Thu Yen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 604/2021

[2026] HKCFI 1249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 604 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) Jeffrey Chau:

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

Observations for the Applicant:

Introduction

1.By a Form 86 dated 30 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 18 March 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 30 October 2020.

2.The Applicant requested for a hearing of this application.  When asked, she said she had nothing to add.

Background

3.The Applicant was a national of Vietnam.  In gist, she fears that if refouled, she would be harmed or killed by her creditors.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

4.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.The Applicant did not state any grounds on which the relief is sought in the Form 86. In her affirmation, she states that “2.  I did not have the financial means to obtain concrete legal advice regarding the procedure of appeal 3.  In order to give the Court a more complete picture of the present case, I would like to adduce the following documents”.  Notwithstanding not having any “concrete” legal advice regarding the procedure of the appeal, there are no material defects her application.  In any event, such grounds did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.  For completeness, the high standard of fairness does not grant the Applicant an absolute right to free legal representation or interpretation services at all stages of the proceedings.  (Re Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmed Syed Rafiq [2018] HKCA 178 at §22; Akhondo Shakil [2021] HKCA 1616 at §20[10]; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378; Kamran Khan [2022] HKCFI 1924 at §§21-25 and [2022] HKCA 230 at §§16-17).

8.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all the applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [12-51].  The TCAB was entitled to conclude that on the evidence, her creditors in fact did not intend to cause her serious harm or to kill her [19, 45-46].  In any event, having considered the country of origin information, the TCAB, in my view plainly correctly, concluded that state protection would be available for her [21-34], and she could relocate, with no evidence that she could be traced by the creditors elsewhere [47-51].

9.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

Dated the 20^th day of March 2026

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