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HCAL 1958/2023
[2025] HKCFI 969
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1958 of 2023
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Nguyen Thi Lan |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 is amended on the court’s own motion.
2. Leave to the applicant to withdraw the Leave Application.
3. The Leave Application be dismissed
Observation for the Applicant:
Introduction
1. By prescribed Form 86 filed on 31November 2023, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) dated 18 October 2023 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision (“Director’s Decision”) dated 25 January 2022 of the Director of Immigration (“Director”) who refused the applicant’s claim for non-refoulement protection.
2. As no request for a hearing was made, this court will determine the Leave Applicant without a hearing: O.53, r.3 (3) of the Rules of the High Court.
3. In Form 86, the applicant named the Board and the Director together as the proposed respondents and stated “Nil” as the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.
Background
4. The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.
5. The applicant came from Vietnam. The applicant claimed that on 3 June 2021, she came to Hong Kong illegally by boat via Mainland China, and was arrested on 19 July 2021 by police who referred the applicant to the Immigration Department. On 28 July 2021 the applicant lodged a non-refoulement application, relying on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by her creditors or their agent for the debts she owed to them.
6. The Director decided against the applicant’s claim on all applicable grounds. The Director considered that the asserted risks were low. After having considered the country of origin information (“COI”), the Director found that both state protection and the option of internal relocation were reasonably available. Hence, the appeal to the Board.
7. After having considered the oral evidence received at the hearing on 28 June 2023 before the Board, the Board did not believe that the applicant had owed any creditors any money as claimed, and found that the applicant had failed to establish that she would face a real risk from any alleged creditors. . The COI was also taken into account when the Board found that internal relocation and state protection were available for a purely private debt disputes between the applicant and her alleged creditors.
Legal principles applicable to judicial review
8. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
Discussion and conclusion
9. The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she exhibited a copy of the Board’s Decision, and deposed that she would be subjected to torture were she refouled. However. There was no evidence or identification of errors in support of the intended challenge.
10. Having rigorously examined the Director’s and Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.
11. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.
Withdrawal of Leave Application
12. On 18 November 2024, the court received a letter from the applicant dated 31 July 2024 applying to withdraw the Leave Application. The applicant states that he has good reason to withdraw, as it is safe for him to return to her country. She also confirmed that she made the withdrawal application out of her free will, and that she understood the consequences of her withdrawal application.
13. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.
Orders
14. The Form 86 is amended on the court’s own motion.
15. Leave to the applicant to withdraw the Leave Application.
16. The Leave Application be dismissed.
Dated the 17th day of March 2025
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(Alfred Chan)
for Registrar, High Court |
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 Applicants:
If leave has been granted, the Applicant or the Applicant’s 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 to the Applicant
on 17/3/2025
Nguyen Thi Lan
Applicant’s ref. no:
Nil.
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Sent 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 17/3/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19951
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2791/21 (formerly as RBCZ 11391/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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