Nguyen Thi Ngoc Bich v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 42/2022 [2026] HKCFI 2754 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 42 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 Levy:
Background 1.By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 11 January 2022, 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 30 December 2021 (“Board’s Decision”) dismissing the applicant's appeal against the Director of Immigration (“Director”) dated 21 May 2021 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: - 2.In her Form 86, the applicant named the Board and the Immigration Department as the proposed respondents and did not name any interested party. As the Board should have been the proper putative respondent and the Director the proper putative interested party, the Form 86 shall be accordingly amended on the court’s own motion. 3.The basis of the applicant’s claim was that, if refouled to Vietnam, she would be harmed or killed by her creditor and the henchmen for an unpaid loan. The Board’s 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. 4.The applicant has not requested for an oral hearing when she filed the Leave Application. In the circumstances, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court. Discussion 5.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced. 6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 provided none at all. In the supporting affirmation, the applicant alleged that the Board’s Decision was unfair as she was not given an opportunity to clarify her case. 7.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.[4] In the present case, the Board rejected the applicant’s account as it found that her evidence not credible and untruthful. The Board found that the past ill-treatment the applicant alleged did not meet the requisite level of severity and that the applicant would not face any risk of harm if refouled. It further found that state protection and internal relocation would be 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. 8.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The allegations stated in the supporting affirmation were vague and general. The applicant has not advanced any grounds in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5]. Orders 9.The Form 86 be amended on the court’s own motion. 10.The applicant’s application for leave to apply for judicial review be dismissed. Dated the 22nd 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 [1] The applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293. [2] Re Zunartyah [2018] HKCA 14 at [23]. [3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142]. [4] 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. [5] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment