LAI THI VIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as putative respondent and the Director of Immigration as putative interested party;

2.  Leave to extend time for the filing of the Form 86 be refused; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 11 August 2021 (“Form 86”), the Applicant sought leave for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) dismissing her appeal/petition on 18 March 2021.  The Applicant has not exhibited a copy of the decision she wishes to challenge to the supporting affirmation; she only exhibited a cover letter from the Secretariat of the TCAB.  The Court’s staff later obtained from the Secretariat of the TCAB a copy of a decision bearing the Applicant’s name and reference number.  It seems the Director of Immigration (“DI”) made a tier-1 decision on the Applicant’s non-refoulement claim on 9 November 2020, and the TCAB (the relevant member also sitting as an adjudicator of the Non-refoulement Claims Petition Office (“NRCPO”)) made a tier-2 decision on 18 March 2021.  In the circumstances, on my own motion, paragraph 1 of the above orders is made to properly name the parties of these proceedings.  A copy of the TCAB/NRCPO’s decision dated 18 March 2021 can be seen from the following hyperlink[1].

2.  The Applicant does not require an oral hearing for this leave application; I dispose of this application by consideration of documents only.

3.  The Applicant is a Vietnamese national.  Her non-refoulement claim was based on an alleged risk of being harmed or killed by three money lenders.  After an oral hearing, the TCAB/NRCPO came to the finding that the Applicant was not subject to any real risk of being harmed, killed, tortured or violated her fundamental human rights; neither was she under any well-founded fear of being persecuted so that she had to stay outside Vietnam (the claim did not fall within any Convention ground anyway).  In coming to this finding, the TCAB/NRCPO considered the factual account put forward by the Applicant, her movement record and availability of State protection.  Reasonable internal relocation alternative was also found to be available. 

4.  The Applicant has not set out any ground of judicial review.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill‑treatment exists lies with the TCAB/NRCPO.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the findings below or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).  I have reviewed the TCAB/NRCPO Decision vigorously, but do not find the proposed judicial review reasonably arguable. 

5.  Moreover, the Form 86 of the present case was filed after a 3-month period from the date of the TCAB/NRCPO’s decision.  In view of the lack of merits as explained above and the lack of explanation of delay, I also refused to extend time for the filing of the Form 86.

6.  The leave application is thus dismissed.

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