TRAN THI TAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 842/2020

[2025] HKCFI 3742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 842 of 2020

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 the Applicant being absent in open court;

1.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party, and by adding “/Non-Refoulement Claims Petition Office” after the words “from Torture Claims Appeal Board”;

2.   Application for leave to apply for Judicial Review be dismissed.  

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Vietnam. By a Form 86 filed on 8 May 2020 (“Form 86”), and a supporting affirmation also filed on 8 May 2020 (“the Affirmation”), she sought leave to apply for judicial review of a decision dated 26 March 2020[1] that was exhibited to the Affirmation, and which is one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) (“TCAB Decision”).  

2.  The Applicant sought an oral hearing of her application, but did not appear at such.  I have hence dealt with her application on the papers. 

3.  I have hence amended the Form 86 of my own motion to reflect the identity of the proper putative respondent and interested party, and the decision in respect of which relief is sought. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein. 

Background

4.  The Applicant’s background and case as to the incidents underlying her claim for non‑refoulement relief are set out in the TCAB Decision.  I will not repeat them but, in essence:

a.  The Applicant claimed non-refoulement protection on the basis that if she were to be sent back to Vietnam she would be harmed or killed by harmed or killed by a moneylender, one Ha;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 17 May 2018 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 9 December 2019; and

d.  The TCAB Decision was dated and handed down on 26 March 2020 which rejected the Applicant’s petition/appeal. 

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380). 

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886). 

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). 

Discussion

8.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation[6], there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. 

9.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.  

10.  The TCAB/NRCPO began by setting out the Applicant’s immigration and procedural history and general background (Paragraphs 1 to 7), then listed out the documents that had been submitted in support of her claim before summarising of her case from the NCF and Interview (Paragraphs 8 to 23). Consideration was then given to relevant COI and conclusions were drawn relating to such (Paragraphs 24 to 27), to internal relocation (Paragraphs 28 to 32), and of the legal principles relating to each of the 4 types of risk (Paragraphs 33 to 43). 

11.  The decision-maker then outlined what had happened at the oral hearing (Paragraphs 44 to 48) before setting out his observations and views on the evidence adduced and his findings as to the Applicant’s credibility and future risk (Paragraphs 49 to 68).  In summary, and by this stage, he had concluded from the evidence that:

a.  The Applicant’s evidence on the facts underlying her claim was questionable and unreliable, and was not credible.  He was unable to attach any weight to, and did not accept, the Applicant’s evidence that she had borrowed money from a moneylender in Vietnam and had been assaulted and threatened with harm or from the moneylender when she failed to repay it, or otherwise ill-treated in Vietnam.  As her evidence was incredible and had been rejected, she had failed to establish, even to the low standard required, that she would face ill-treatment if refouled to Vietnam; and

b.  In any case reasonable state protection was available, and the chance of Ha (her alleged creditor from her home village) being able to find her in Danang, Ho Chi Minh City, or Hanoi was minimal. Internal relocation to them would further negate any alleged risk, and was available, reasonable, and not harsh.

12.  The TCAB/NRCPO then moved on to find that the Applicant did not have a valid claim for Torture Risk, BOR 3 Risk, Persecution Risk, or BOR 2 Risk.  In doing so it had regard to its earlier conclusions and other relevant topics such as state acquiescence and the lack of a Convention reason in relation to persecution (Paragraphs 69 to 88).  Accordingly, it dismissed the appeal/petition and confirmed the Director’s Decision (Paragraph 89). 

13.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient to vitiate the TCAB Decision.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence and credibility, state protection, the risk of harm, Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk[7], and internal relocation, which are all matters primarily within the province of the decision-making body. 

14.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. 

Conclusion

15.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above. 

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