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

HCAL 2378/2020

[2025] HKCFI 6266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2378 of 2020

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 the documents and the Applicant being absent in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 4 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated “18 March 2020”. There was in fact no decision from the TCAB on such date; the only decision from the TCAB was one dated 8 November 2018 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 11 January 2017. The “18 March 2020” date seems to refer to a refusal letter from the Immigration Department for a subsequent application. I regard the present application to be a challenge against the TCAB Decision.

2.  I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application but she was absent at the hearing. I shall deal with this application on paper.

Background

4.  The Applicant is a national of Vietnam. She seeks non-refoulement protection on the basis that she would be harmed or killed by her creditor if she is to go back. The Applicant borrowed money from a loan shark for her business and she was unable to repay. There were incidents of assault against the Applicant and death threats were made. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. In her affirmation in support she merely stated that the risk to her life was still continuing.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [4-9] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [10-16, 32-33, 35-36, 39-40] and properly considering Country of Origin information [21-28, 45], the Applicant’s allegations were insufficient to make out any of the applicable grounds [17-19, 34, 37-38, 41-43].

10.  The TCAB also concluded that state protection and internal relocation were available on the evidence [29-31, 46-47]. There were conclusions that the TCAB was fully entitled to come to.

11.  I further note that the TCAB did not conduct an oral hearing before rendering the TCAB Decision. The TCAB properly considered whether an oral hearing should be held as a matter of procedural fairness with reference to the correct legal authority [3] and I am unable to detect any error or unfairness, particularly in view of the fact that the TCAB Decision did not concern any serious disputes on facts or law.

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. I further note that the application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made. Since I have held that the application is without merit, I also refuse to grant an extension of time (there was in any case no explanation for the delay).

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