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HCAL 1722/2021
[2026] HKCFI 2368
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1722 OF 2021
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BETWEEN
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Le Thi Thiet |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 20 December 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 19 October 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001722_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 9 February 2021, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board / Non-refoulment Claims Petition Office as the putative respondent and did not name any putative interested party in Form 86.
4. In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.
5. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
6. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.
The applicant’s case
7. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or even killed by a loan shark named Ha Duc Tan (“Ha”) and Ha’s gangsters due to her inability to repay a loan of 250 million Vietnamese Dong borrowed from Ha.
Disposal on paper
9. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
10. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
11. The applicant did not advance any ground for her intended judicial review in Form 86. In her supporting affirmation dated 20 December 2021, she merely stated that the decision has been reached unfairly without allowing her an opportunity to clarify her case and situation in her country.
Discussion
12. First of all, the applicant’s allegation in her affirmation that the Board’s Decision was reached unfairly without allowing her an opportunity to clarify her case and situation in her country is simply not true.
13. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 8 September 2021. The applicant was present and was assisted by an interpreter. Thus, she was given the chance to present her case and situation in her country to the Board in person.
14. Her case including her alleged danger in her home country had been duly assessed by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
15. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
16. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
17. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.
18. The Board had serious concerns about the credibility of the applicant’s claims, and her veracity as a witness. The Board had given full reasons in paragraphs 71 to 79 of the Board’s Decision for its conclusion that when the applicant’s evidence was viewed in its totality, the shortcomings were such that the Board was not satisfied about any of the applicant’s claims and rejected the applicant’s account in its entirety.
19. In particular, the Board did not accept that the applicant had business debts in Vietnam on account of which she was harmed in the past and was being pursued by loan sharks, triads, gangsters or “black society” members, or any combination thereof. Consequently, the Board did not accept that the applicant faced any appreciable risk of harm for the reasons claimed, should she return to Vietnam.
20. The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to her claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.
21. As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).
22. As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.
23. The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
24. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
25. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 29th day of April 2026
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( Gladys LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 29/04/2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 29/04/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17694/21/3/13/V2772
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 932/20 (Formerly RBCZ 10792/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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