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

HCAL 1487/2022

[2026] HKCFI 2657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1487 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) Philips Wong:

1.   Form 86 be amended as follows:- (1) the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) 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 13 December 2022 (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 24 November 2022 (the “Board’s Decision”).

2.In the Form, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents.  The Applicant did not name any interested parties.  As it is trite that the Board should be the only proposed respondent whereas 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 29 April 2026.  Notice of Hearing was issued to the Applicant at the address provided by the Applicant on the Form in advance, which is also the address of the Applicant as confirmed by the Immigration Department.  Attempt was also made to contact and remind the Applicant of the hearing by phone at the number provided by the Applicant on the Administrative Form (which was also confirmed to be the telephone number submitted by the Applicant to the Immigration Department) on 23 and 24 April 2026 but the number was found to be unregistered.  The Applicant did not attend the hearing.

4.As the Notice of Hearing was properly served at the address provided by the Applicant, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

5.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

6.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.)

7.The Applicant had attached a document entitled “Grounds on which relief is sought” to the Form (the “Grounds”).  In the Grounds, the Applicant sought to apply for judicial review in respect of both the Board’s Decision and the decision of the Director dated 11 November 2021 (the “Director’s Decision”). 

8.The Director’s Decision had already been superseded by the Board’s Decision.  The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

9.The Applicant did not provide any grounds in support of the Leave Application in the supporting Affirmation.  She simply attached the Board’s Decision thereto.  The Applicant raised a number of points in the Grounds, which can generally be summarized as follows:-

(1)   The Director and the Board had wrongly assessed her claims.  The Board’s Decision and the Director’s Decision were not reasonable and fair (as required by the Wednesbury test).  The Applicant claimed that her right to life is protected under Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).  She further claimed that the right to life is mainly protected by the criminal law and it must be protected from killings that she may face if she is deported back to her country.

(2)   The Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case.  This had led to an unfair outcome of the case. 

(3)   The Board had acted unreasonably and was procedurally unfair by placing too much reliance on COI materials but had failed to take her personal background and experience into account.  Further, although the Director had listed relevant COI materials which support the aversions that the police in her country would not be able to protect, the Director had failed to consider or give enough weight to such evidence and ruled otherwise.

(4)   The Board was procedurally improper and/or unfair when assessing whether to accept or not accept explanations provided by her, and had unreasonably required her to respond to questions that she was not in a position to offer any responses.

(5)   The Director had failed to take into account or give enough weight to the Applicant’s argument.

(6)   The Director had shown an unfair attitude towards the Applicant or the Applicant’s claims.  There was corruption and incompetence of the administration in the Applicant’s country.  Various human rights organizations had compiled reports on the matter which support the Applicant’s assertions.

(7)   The Director had failed to attain the high standard of fairness required by the Wednesbury test.  As such, the Director’s Decision is unreasonable.

(8)   The Board’s Decision and the Director’s Decision are irrational.

10.I do not consider any of the above Applicant’s contentions meritorious. I shall briefly set out my reasons below.  In so far as the Applicant’s complaints are made against the Director, I refer to my ruling in §8 above.  I shall further consider such complaints as if the complaints were made against the Board as well. 

11.In relation to point (1), the Board had cited and applied the correct legal principles under Article 2 of the HKBORO (§§23-24, 137-141 of the Board’s Decision).  The Applicant’s claim is based on the alleged threat from her creditor (§34 of the Board’s Decision).  The Board found the Applicant to be an untrustworthy witness, and that the core elements of her evidence are devoid of credence (§§94-95 of the Board’s Decision).  The Board’s conclusion on the Applicant’s claims under Article 2 should be considered in the light of such findings.  I see no errors committed by the Board in the findings and reasoning.   

12.In relation to point (2), as mentioned above, the Applicant’s case is based on the alleged threat from her creditor (§34 of the Board’s Decision). There is no allegation or evidence to suggest that the state or any public officials were involved (§104 of the Board’s Decision).  Accordingly, this ground has no relevance in the context of the case. 

13.In relation to point (3), the Applicant has failed to identify the precise COI materials which she alleged the Board had placed too much reliance on, and has failed to explain why she said so.  She has also failed to state her personal background and experience which she alleged the Board had overlooked, and has failed to explain the relevance thereto.  The Board had thoroughly considered the COI materials and concluded that the Applicant had failed to establish that reasonable state protection would not be available to her (§§96-104 of the Board’s Decision).  I again see no errors in the Board’s decision in this regard.

14.In respect of point (4), the Applicant’s complaint is bare assertion without proper particulars.  She has failed to identify the questions which she claimed the Board had unreasonably required her to answer.  She has equally failed to identify precisely which explanation she had provided to the Board which the Board had allegedly unfairly and improperly refused to accept, and has failed to explain why she said so.

15.In respect of point (5), the Applicant has failed to identify precisely what argument(s) she had advanced which the Board had allegedly overlooked or failed to give sufficient weight. 

16.In relation to point (6), the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards her.  Contrary to what the Applicant seems to suggest, the Board did consider the COI materials relating to the alleged corruption and incompetence issues in Vietnam (for instance, see §§99-100 of the Board’s Decision).  Nevertheless, the Board was entitled to find that reasonable state protection would still be available to the Applicant (§§96-104 of the Board’s Decision).

17.Point (7) is a general assertion without particulars in support.  The Applicant has failed to show how the Board had allegedly failed to attain the high standard of fairness or that the Board’s Decision was unreasonable.

18.Point (8) is equally a bare assertion without particulars in support.

19.Having fully and carefully considered the Board’s Decision.  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 find that the Applicant was an untrustworthy witness, and that the core elements of the Applicant’s evidence lack credence (§§66-95 of the Board’s Decision).  The Applicant’s grounds above should be considered in the light of such findings. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

20.In the premises, 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.

21.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, as well as the grounds advanced by the Applicant.

Conclusion

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

Dated the 14^th day of May 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