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HCAL 928/2020
[2025] HKCFI 1937
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 928 OF 2020
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BETWEEN
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Do Thi Nga |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, “Director of Immigration” be added as the putative interested party.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 18 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 13 May 2020 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000928_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”) failed. Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 24 October 2019, which rejected the applicant’s claim for non-refoulement protection.
Amendment
3. In Form 86, the applicant did not name any putative interested party when the Director should be so named. This court therefore makes an order on its own motion to add “Director of Immigration” as the putative interested party.
The applicant’s case
4. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
5. In sum, the applicant claimed for non-refoulement protection because she would be harmed or killed by a creditor named Bui Van Thanh and seven other creditors (collectively “the Creditors”) if she were to be refouled to Vietnam, as she was unable to settle the outstanding debts owed to them.
Oral hearing
6. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 6 May 2025.
7. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn her request for a hearing by reason of the absence at the hearing and to proceed to determine the leave application on its merits.
8. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
9. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
10. The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 18 May 2020. The applicant merely stated in the affirmation that she did not agree with the Board’s Decision, which is not a ground for judicial review at all.
Discussion
11. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
12. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 21 January 2020. The applicant was present and was given the chance to present her case and grounds of appeal to the Board in person. The Board carefully examined her evidence and questioned the applicant for details.
13. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found that there was no reliable evidence to show the existence of the claimed loans from the Creditors as well as the alleged threatening incidents, and even if there were disputes with the Creditors, there was no evidence to show that the Creditors were public officials relating to the state of Vietnam. Thus, there was no evidence to show that state protection was not available to the applicant.
14. The Board also found that the applicant is able-bodied with a number of years of work experience in Vietnam. It was not suggested that she would not be able to re-establish herself elsewhere in Vietnam. It would be unlikely for the Creditors to locate the applicant. In addition, the Board noted that the household registration system in Vietnam has been abolished since 1 January 2019. Thus, the Board concluded that internal relocation would not be unduly harsh and was viable for the applicant.
15. The assessment of evidence, country of origin information and risk of harm were primarily within the realm of the Board. In view of the evidence available, the Board found that there were no substantial grounds for believing that she would be subjected to torture if she were to be sent back to Vietnam. The Board is entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
16. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
17. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
18. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16th day of May 2025
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( Thomas Chan )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on 16/5/2025
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 16/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16454/19/11/12/V2377
Director of Immigration
Putative interested party’s ref. no.: QA T/C 681/19 (Formerly RBCZ 10442/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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