Pham Thi Dung v Torture Claims Appeal Board /

HCAL 2081/2023

[2026] HKCFI 3974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2081 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;          or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Andrew Li:

1.  The Applicant’s Form 86 be amended to name only the Torture Claims Appeal Board as the putative respondent and the Director of Immigration as the putative interested party; and

2.  Leave to apply for judicial review be dismissed.

Observations for the Applicant:

INTRODUCTION

1.By a Form 86 filed on 22 November 2023 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 17 November 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 24 July 2023 in refusing the applicant’s non-refoulement protection claim. She named the Board and the Director as the proposed respondent but neither of them was listed as interested parties.

2.I amended the Form 86 on my own motion to name only the Board as the putative respondent and the Director as the putative interested party.

3.The applicant did not request for a hearing and this application is to be dealt with on paper.

BACKGROUND

4.The applicant is a national of Vietnam. She seeks non-refoulement protection on the basis that if she is refouled, she would be hurt by loan sharks from whom she had borrowed money to fund her business. Her personal background, the relevant facts and relevant procedural history have been set out in the Board’s Decision, which can be assessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

5.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. 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 Board (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.In the Form 86 and her affirmation filed in support of this application, the applicant has specified the following grounds which included alleged error of law, procedural unfairness or irrationality of the Board’s Decision:-

(1)  The decision of the Board was not reasonable or fair in the Wednesbury sense [1];

(2)  The Board has failed to appreciate or give “proper importance or weightage to the presence of state Acquiescence” [2];

(3)  The Board acted unreasonable and was procedurally unfair by placing too much reliance on the Country of Origin Information (“COI”) but failed to take into account of the applicant’s personal background and experience [3];

(4)  The adjudicator was “procedurally improper and/or unfair” when assessing whether to accept or not to accept explanations provided by the applicant and unreasonable required the applicant to respond to questions that she was not in a position to offer any response [4];

(5)  The Director has failed to take into account of the arguments raised by the applicant or has failed to give enough weight to such argument before reaching his decision [5]; and

(6)  The Board has made a ruling to dismiss the applicant’s appeal/petition based on findings which the adjudicator ought to allow the appeal/petition, “thus the Decisions (sic) was irrational” [6].

7.Having carefully looked at the Board’s Decision, I find the Board has taken into consideration of the applicant’s case and evidence [5 to 30], including the applicant’s testimony at the hearing before it [50-51].

8.In my view, the Board bore in mind the correct principles in respect of each of the four applicable grounds under the USM [43-47], thoroughly analysed each, including the applicant’s credibility [62-66], before coming to the findings and conclusions that the applicant’s allegations were not capable of belief [67].

9.The Board further concluded that, although the issue did not arise, internal relocation would also have been available to the applicant [83-88].

10.Looking at the Board’s Decision, I do not find there was anything unreasonable in the Wednesbury sense. I also do not find the Board has failed to appreciate or failed to give sufficient or proper weight to the presence of the state’s “acquiescence” as alleged or at all. Further, I do not find the Board has placed too much reliance on the COI and failed to take into account of the applicant’s personal background and experience. To the contrary, I find the Board has meticulously set out and analysed the evidence produced by the applicant, including the oral evidence she gave at the hearing. The Board has carefully judged her personal circumstances against the COI before arriving to its conclusion. In addition, I do not find the Board has adopted any improper or unfair procedures when assessing the explanations provided by the applicant. Nor did it in my view unreasonably requested the applicant to respond to any questions that she was not in a position to offer any response to. Lastly, the court is not here to review the Director’s decision but that of the Board’s. Hence what the applicant alleged about the failure of the Director under Ground [5] had already been subject matter of the appeal before the Board which the Board has properly taken into consideration.               

11.In the aforestated premises, I do not see any error of law, procedural unfairness or irrationality in the Board’s Decision, despite rigorous examination and anxious scrutiny.

CONCLUSION

12.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated 23 July 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