DO THU HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2989/2019

[2025] HKCFI 3797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2989 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

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

Leave to apply for Judicial Review be refused

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 23 August 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) refusing her claim for non-refoulement protection under the Unified Screening Mechanism (“USM”).

2.  The Applicant is a Vietnamese national. Her personal background, the factual background leading to the present application, the basis of her claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below [1] for reference. In gist, the Applicant claims that if returned to Vietnam, she will be harmed or even killed by the vendor for refusing to cancel a scam land transaction she had entered with him.

3.  The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered that the application could be justly determined on paper without an oral hearing.

Grounds for judicial review

4.  The Applicant did not advance any grounds of appeal in Form 86, nor in her supporting affirmation. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

5.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds of application and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. It correctly identified the factual and legal issues involved in the claim. The Applicant’s claim arose out of a dispute over an alleged scam land transaction with a triad gang leader introduced to her by someone whom she came to know not too long prior to the transaction and whom she believed was a judge in Vietnam. The Board had carefully considered her evidence, tested it against common sense and inherent probability. The Applicant’s evidence was so woefully full of inherent inconsistencies and contradictions that the Board found her incredible and her evidence untruthful. It found she had failed to prove, even to the low standard of proof required, that the land transaction existed and that she had been detained and ill-treated which formed the centerpiece of her claim. As the Applicant bears the burden of proving her claim, such a finding is necessarily fatal. These are finding of fact which the court in a judicial review will not interfere, except in circumstances as mentioned below.

6.  The Board did not stop there. It went on to assess her claim on the basis of the case as she asserted. Even on that basis, the Board found she is not entitled to non‑refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of law and of fact. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are solely within the realm of the Board, which the court in an application for judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision. The Court could detect no errors of law or procedural unfairness in the Decision. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision could not have been faulted. The proposed judicial review has no realistic prospect of success.

Conclusion

7.  Accordingly, the Applicant’s leave application is refused.

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