TRINH HA TRANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 199/2023

[2026] HKCFI 4518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 199 of 2023

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 Applicant’s Form 86 be amended to name the Director as the putative interested party; and

2.  Leave to apply for judicial review be dismissed.

Observations for the Applicant:

INTRODUCTION

1.  By a Form 86 filed on 13 February 2023 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 3 February 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 15 March 2022 in refusing the applicant’s non-refoulement protection claim. She named the Board as the proposed respondent and the proposed interested party.

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

3.  The applicant requested for a hearing and she attended the same.

BACKGROUND

4.  The applicant is a national of Vietnam. She seeks non-refoulement protection on the basis that if she is refouled, she would be harmed or even killed by her creditor from whom she had borrowed money to fund her clothing business. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same here.

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 Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director 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 Board (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 & Anor (2007) 10 HKCFAR 676).

6.  In both of the Form 86 and her affirmation filed in support of the application, the applicant did not point to any errors of law, procedural unfairness or irrationality of the Board’s Decision.

7.  At the hearing, when asked if she had anything to add, she answered in the negative.

8.  Looking at the Board’s Decision, the Board bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [19-25, 29-33, 36-40, 44-50].

9.  It took into consideration the applicant’s case and evidence, including relevant Country of Origin Information [26-28].

10.  After thoroughly analysing and assessing the above, the Board came to the findings and conclusions that none of the grounds was made out [34-35, 42-43, 51-53].

11.  Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision.

CONCLUSION

12.  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