DO THI KIM DUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 242/2023

[2026] HKCFI 4578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 242 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 the Applicant being absent in open court;

1.  The Applicant’s Form 86 be amended to name only the Torture Claims Appeal Board as the putative respondent and the Director of Immigration 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 17 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 20 January 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 31 January 2022 in refusing the applicant’s non-refoulement protection claim. She named the Board and the Director as the proposed respondent but neither of them was listed as the interested parties.

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

3.  The applicant requested for a hearing but she was absent at the scheduled hearing on 6 August 2026. From the court record, the Notice of Hearing dated 13 July 2026 was sent to an address updated through the Immigration Department. Such updated address was, presumably, provided by the applicant to the Immigration Department in the first place.

4.  Bearing in mind what Barma JA held in Re Abdus Salam [2019] HKCA 1091 at [19], i.e. in an application for leave to bring judicial review proceedings, it is not essential for the applicant to attend an oral hearing, when the applicant fails to turn up at an oral hearing he/she had requested, it should be regarded as a decision to forego the right to the requested oral hearing and the court can deal with the application on paper. Applying the same logic, if the applicant failed to provide an updated address to receive notices from the court, it also signals a disregard of, and indeed a decision to forego, the right of attending an oral hearing.

5.  I therefore decided to proceed to deal with this application on paper notwithstanding the applicant’s absence at the hearing.

BACKGROUND

6.  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 killed by her creditor. 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 herein.

DISCUSSION

7.  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).

8.  In the Form 86 and her affirmation filed in support of the application, the applicant has specified the following grounds:-

(1)  The decisions of the Director and the Board were not reasonable or fair in the Wednesbury sense [3];

(2)  The Director has “failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence” in her decision [4];

(3)  The Board acted “unreasonable and was procedurally unfair by placing too much reliance on the Country of Origin Information (“COI”)” but failed to take into account of the applicant’s personal background and experience. The Director “had listed relevant COIs which support the aversions that the police in [the applicant’s] country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.” [5];

(4)  The Board “was procedurally improper and/or unfair” when assessing whether to accept or not to accept explanations provided by the applicant and unreasonably required the applicant to respond to questions that she was not in a position to offer any response [6];

(5)  The Director has failed to take into account of the arguments raised by the applicant or has failed to give enough weight to such argument before reaching her decision [7]; and

(6)  The Board has made a ruling to dismiss the applicant’s appeal/petition based on findings which the adjudicator ought to allow the appeal/petition, “thus the Decisions (sic) was irrational” [8].

9.  Insofar as the above purported grounds of review were made against the Director (including Ground [3], [4], [5] and [7] above), it has been held that the Director’s decision is not susceptible to judicial review once an appeal to the Board had been pursued: See Re Raschpal Singh [2020] HKCA 978, per Lam VP (as he then was) at §§40-41. Thus, there is no need for me to consider them. I only need to consider the Board’s Decision.

10.  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 [17-37].

11.  It took into consideration the applicant’s case and evidence, including relevant COI [38-43].

12.  After thoroughly analysing and assessing the above, the Board came to the findings and conclusions that none of the grounds was made out, and further that internal relocation would be available to the applicant [64-84].

13.  Having looked at the Board’s Decision carefully, I do not find there was anything unreasonable in the Wednesbury sense.

14.  As the allegation of failing to appreciate or failed to give sufficient or proper weight to the presence of the state’s “acquiescence” was made against the Director only, it cannot be made a subject of judicial review as the Director’s Decision is not susceptible to judicial review as explained above.  

15.  Further, I do not find the Board has placed too much reliance on the COI and failed to take into account of the applicant’s personal background and experience. To the contrary, I find the Board has taken into account fully of the applicant’s personal background and experience and has meticulously set out and analysed the evidence produced by the applicant, including the oral evidence she gave at the hearing.    

16.  Lastly, I do not find the Board has adopted any improper or unfair procedures when assessing the explanations provided by the applicant. Nor did it in my view unreasonably requested the applicant to respond to any questions that she was not in a position to offer any response to.

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

CONCLUSION

18.  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