DANG THI LUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3451/2019

[2025] HKCFI 3571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3451 of 2019

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 oral submissions by the Applicant in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  The application to apply for leave to judicial review the Board’s Decision be dismissed.

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 21 November 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 8 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a Chinese decision of the Director of Immigration (“Director”) dated 21 August 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003451_2019_files/the_Board's_Decision.pdf

2.  Notwithstanding the fact that the Form 86 as well as the Director’s Decision are in the Chinese language, I believe it is more convenient to render this decision in the Form Call-1 in English as the Board’s Decision is in English.

3.  In her Form 86, the applicant named the Director and the Board as the proposed respondents and did not name any party as the interested party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 shall be accordingly amended on the court’s own motion.

4.  The basis of the applicant’s claim was that she would be harmed or killed by loan sharks with triad background for the unpaid loans owed by her and her husband. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

5.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 24 July 2025. Which the applicant attended the hearing in person. After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Discussion

6.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  In her supporting affirmation, the applicant stated that the Board had not fully considered the current condition in Vietnam.

9.  At the hearing, this court asked the applicant whether she had any other grounds she wished to submit in support of the Leave Application. The applicant only stated that she would like to be allowed to stay in Hong Kong longer.

10.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board found that the applicant was not a credible witness due to the numerous inconsistences and discrepancies and the shifting evidence concerning the loans. The board found that the applicant kept adding new evidence and that she was not able to resolve the discrepancy in relation to the evidence concerning threats from the creditors. The Board did not accept the applicant’s evidence concerning a loan and that she was threatened by the creditors. In any event, the Board found that matter regarding a loan was purely a private matter that did not involve the state. After having considered the relevant COI, the Board found that there was available to the applicant reasonable state protection and internal relocation. The Board therefore concluded that there was no real risk of harm. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in the Board’s Decision. I find the Board was entitled to reject the centerpiece of the applicant’s evidence and reach the conclusion that there was no risk of harm. The applicant’s written grounds are vague and do not condescend to particulars. At the hearing, the applicant was also unable to advance any grounds in support of the Leave Application. In the circumstances, I find that the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Orders

12.  The Form 86 be amended on the court’s own motion.

13.  The application to apply for leave to judicial review the Board’s Decision 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