DAO THI THU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3872/2019

[2025] HKCFI 2491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3872 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;

1.  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 30 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Torture Claims Appeal Board (the “TCAB”) dated 18 December 2019 (the “TCAB Decision”), which affirmed the decision dated 30 July 2019 by the Director of Immigration (the “DOI”) refusing the Applicant’s non-refoulement protection claim.  She named the TCAB as the proposed respondent and also as an interested party.

2.  I amended the Form 86 on my own motion to name only the DOI as a putative interested party.

3.  The Applicant requested for a hearing of this application and she attended the same.  When asked if she had anything to add she confirmed that she had not.

Background

4.  The Applicant is a national of Vietnam.  She seeks non-refoulement protection on the basis that she will be harmed or killed by her creditor if she is returned.  Personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case 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.  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, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

6.  In her affirmation filed in support of the Form 86, the Applicant only repeated her allegations and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  As can be seen from the TCAB Decision, although it was decided that an oral hearing was not required [16-21], the TCAB took into account all of the evidence available [22] and on the basis thereof, applying also the correct legal principles in respect of the four applicable grounds under the USM [5-15] and considering also the relevant COI [32-33], concluded that the risk alleged by the Applicant was not sufficient to make out any of the grounds [23-43].

8.  Further, the TCAB also concluded that state protection was not lost [31] and that internal relocation was available on the basis of available evidence [44-46].

9.  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.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003872_2019_files/the_Board's_Decision.pdf