DAO THI THANH HOA v. TORTURE CLAIMS APPEAL BOARD

HCAL 332/2020

[2025] HKCFI 1494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 332 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53 rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

Introduction

1.  By way of Form 86 dated 23 January 2020 and filed on 6 March 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 22 January 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/HCAL000332_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism failed. Hence, the Board rejected the applicant’s appeal and confirmed the decision of the Director of Immigration (“the Director”) dated 27 November 2019.

Amendments

3.  The applicant named both the Board and the Director as putative respondents and did not name any putative interested party in Form 86. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

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 was indebted to notorious creditors in Vietnam and feared that the creditors would harm or kill her, or force her to be a prostitute if she returned to Vietnam.

Grounds for judicial review

6.  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).

7.  However, the applicant failed to identify any ground for judicial review in Form 86 or the supporting affirmation.

Discussion

8.  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).

9.  In assessing the applicant’s appeal, the Board held a hearing on 10 January 2020. The Board found that the feared threats from her creditors were never serious and they were merely means to pressurize her to repay the loan. The treatment she received did not fall within the meaning of torture under section 37U(1) of the Immigration Ordinance. The injuries resulted from the attacks were minor and did not attain a minimum level of severity. Thus, 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. Moreover, internal relocation was viable for the applicant.

10.  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.

11.  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

12.  For reasons aforesaid, the Leave Application is 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