PHAM HONG THUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 429/2023

[2026] HKCFI 4221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 429 of 2023

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;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 20 March 2023 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 6 March 2023 (the “Board’s Decision”).

2.  On the Form, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. The Applicant did not name any interested parties. As it is trite that the Board should be the only proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

3.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on 20 July 2026 and the Applicant attended in person. The Applicant however indicated at the hearing that she had nothing to say in respect of the Leave Application, despite having requested an oral hearing herself.

Background

4.  The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

5.  The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.)

6.  The Applicant had attached a document entitled “Grounds on which relief is sought” to the Form (the “Grounds”). In the Grounds, the Applicant sought to apply for judicial review in respect of both the Board’s Decision and the decision of the Director dated 28 September 2021 (the “Director’s Decision”).

7.  The Director’s Decision had already been superseded by the Board’s Decision. The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

8.  The Applicant did not provide any grounds in support of the Leave Application in the supporting Affirmation. She simply attached the Board’s Decision thereto. The Applicant raised a number of points in the Grounds, which can generally be summarized as follows: -

(1)  The Director and the Board had wrongly assessed her claims. The Board’s Decision and the Director’s Decision were not reasonable and fair (as required by the Wednesbury test). The Applicant claimed that her right to life is protected under Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”). She further claimed that the right to life is mainly protected by the criminal law and it must be protected from killings that she may face if she is deported back to her country.

(2)  The Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case. This had led to an unfair outcome of the case.

(3)  The Board had acted unreasonably and was procedurally unfair by placing too much reliance on COI materials but had failed to take her personal background and experience into account. Further, although the Director had listed relevant COI materials which support the “aversions” that the police in her country would not be able to protect, the Director had failed to consider or give enough weight to such evidence and ruled otherwise.

(4)  The Board was procedurally improper and/or unfair when assessing whether to accept or not accept explanations provided by her, and had unreasonably required her to respond to questions that she was not in a position to offer any responses.

(5)  The Director had failed to take into account or give enough weight to the Applicant’s argument.

(6)  The Director had shown an unfair attitude towards the Applicant or the Applicant’s claims. There was corruption and incompetence of the administration in the Applicant’s country. Various human rights organizations had compiled reports on the matter which support the Applicant’s assertions.

(7)  The Director had failed to attain the high standard of fairness required by the Wednesbury test. As such, the Director’s Decision is unreasonable.

(8)  The Board’s Decision and the Director’s Decision are irrational.

9.  I do not consider any of the above Applicant’s contentions meritorious.

10.  The Board’s Decision was a decision not to allow the late filing of the Applicant’s notice of appeal to the Board. Points (1), (2), (3) and (6) above clearly have no relevance to the Board’s Decision. In so far as the other points are concerned, they are bare assertions without particulars, and are not substantiated in any event.

11.  Under section 37ZT(2) of the Immigration Ordinance (Cap. 115) as amended on 1 August 2021, the Board had to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s notice of appeal to the Board. In doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of such reasons.

12.  In the present case, the Board had thoroughly considered the reasons provided by the Applicant for the late filing of the notice of appeal. As the Applicant had failed to provide further information or documents in support of her explanation despite request from the Board, the Board was entitled, and indeed correct in my view, to conclude that the Applicant had failed to provide sufficient evidence to show that she had exercised all due diligence to file the notice within the specified time (§§16-26 of the Board’s Decision). I see no errors in the Board’s reasoning.

13.  Having fully and carefully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.

14.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

15.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

16.  In the premises, I make an order that the Form be amended as described above and the Leave Application be 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