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

HCAL 81/2022

[2026] HKCFI 1374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 81 of 2022

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) Connie Lee:

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observation for the Applicant:

Introduction

1.By Form 86 filed on 24 January 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 14 January 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 10 May 2021 (the “Director’s Decision”), which had rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.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. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.The Applicant attended the oral hearing scheduled before me. She updated this Court with her latest family circumstances i.e. she has given birth to a baby in Hong Kong on 9 May 2024.

Discussion

4.Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision. The primary decision makers are the Director of Immigration (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 error of laws, procedural unfairness or irrationality in the decision of the Board.[2]

5.In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in her supporting affirmation.[3] As matter stands, the Applicant only included the ground that the Board Decision has been reached unfairly without allowing her an opportunity to clarify her case and situation in her country.

6.I have scrutinized the Board’s Decision and come to the view that the purported ground identified by the Applicant cannot be established or considered as valid or effective public law ground.

7.First, the ground merely consists of general assertions without particulars. The same cannot assist the Applicant. [4]

8.In particular, I do not agree that the Applicant was not given an opportunity to clarify her case. She attended the oral hearing before the Board and confirmed the accuracy and truthfulness of the documents submitted by her. The Board was acutely aware of her claim that if refouled, she will be at risk of at harm/being killed by the Creditor and his fellows as she has no money to repay the loan.

9.Second, the Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials. In addition, the Applicant’s oral submissions made at the hearing before the Board had also been duly considered by the Board. The Board was entitled to take the view that she had only made bare assertions and provided no objective proof for the same. Thus, the Board was also entitled to find that (1) the Creditor never intended to kill the Applicant and she had never suffered any physical injuries; (2) the harm, actual and perceived from the Creditor and his fellows, was not imminent and ill-treatment, if any, had not attained a minimum level of severity and any future risks are therefore speculative; (3) reasonable state protection would be available and (4) it was not suggested that the Applicant would not be able to reestablish herself in her home state or elsewhere within Vietnam.

10.Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim. The Board was entitled to come to the conclusions it did and reject her claim.

11.Fourth, for the sake of completeness, I should add that the Applicant’s oral assertions in relation to her latest family circumstances i.e. she has given birth to a baby in Hong Kong since filing the Leave Application, have no relevance to her own non-refoulement claim.[5]

Conclusion

12.Accordingly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[6] I dismiss the Application.

Dated the 27^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