BUI THI PHUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 697/2020

[2025] HKCFI 3778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 697 of 2020

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 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party, by replacing “31-01-2020” with “9 April 2020”, and by inserting “/Non-Refoulement Claims Petition Office” before the words “Dismissed my”;

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Vietnam. By a Form 86 filed on 20 April 2020 (“Form 86”), and a supporting affirmation also filed on 20 April 2020 (“the Affirmation”), she sought leave for judicial review. In the Form 86 she identified the decision as being one of the Torture Claims Appeal Board (“TCAB”) dated 31 January 2020.

2.  The Applicant did not seek an oral hearing of her application. I have hence dealt with such on the papers.

3.  There is no decision of the TCAB dated 31 January 2020 and the Affirmation does not exhibit any decision. However:

a.  The Applicant claimed non-refoulement protection on the basis that if she were returned to Vietnam she would be harmed or killed by her husband’s creditor;

b.  Her claim was assessed on the grounds of Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 25 November 2019 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/Non-Refoulement Claims Petition Office (“NRCPO”), which held a hearing in relation to the Applicant’s non-refoulement claims on 27 March 2020; and

d.  The TCAB/NRCPO then handed down a decision dated 9 April 2020 (“TCAB Decision”)[5] which rejected the Applicant’s petition/appeal and confirmed the Director’s Decision.

4.  In the circumstances, as the Form 86 clearly refers to a decision of the TCAB and names the TCAB as a putative respondent, I take it that the Applicant was intending to refer only to the TCAB Decision. I did not understand the Applicant to be seeking leave to commence a judicial review of the Director’s Decision, notwithstanding that she named both the TCAB and the Director as a putative respondent and said in the Affirmation that she seeks leave to apply for judicial review against the Director.  However, if and insofar as she does so, that application stands only to be rejected and I do so given the existence and implications of the two-tier system, and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

5.  I have hence amended the Form 86 of my own motion to reflect the identity of the proper putative respondent and interested party, and the decision in respect of which relief is sought. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

6.  The TCAB Decision sets out the Applicant’s background and case as to the incidents underlying her claim for non‑refoulement relief, as well as her immigration and procedural history leading up to the same decision. I have briefly summarised portions thereof above, and will not repeat the contents of the TCAB Decision.

Legal Principles

7.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

8.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

9.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

10.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

11.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

12.  The TCAB/NRCPO, after setting out the procedural history of the Applicant’s claim (Paragraphs 1 to 2), moved on to outline each of the four relevant bases of risk with reference to relevant principles (Paragraphs 3 to 22). The decision-maker then summarised the conduct of the hearing (Paragraph 23), before moving on to the facts of the Applicant’s case and her immigration history (Paragraphs 24 to 40). As for credibility, while it took the view that the Applicant did not (with regard to demeanour) present herself as particularly believable or unbelievable, it considered that the Applicant’s story was internally adequately consistent as to the money lending allegation (Paragraph 41).

13.  The TCAB/NRCPO then assessed Persecution Risk and found that it had not been made out, as there was no Convention reason and (having regard to relevant COI) reasonable protection and no well-founded fear for refusing such (Paragraphs 42 to 61). It also found that BOR 2 Risk and BOR 3 Risk were not established, having regard to the totality of the evidence before it in relation to each heading and as to BOR 3 Risk the availability of state protection and (in relation to the requisite “minimum level of severity”) the extent of the injuries inflicted (Paragraphs 62 to 71). Torture Risk was also not established given the extent and nature of the Applicant’s injuries, and having regard to the issues of, and evidence/COI relating to, state protection and state acquiescence (Paragraphs 72 to 82). Accordingly, the decision-maker found that the appeal/petition had failed on all applicable grounds, dismissed such, and confirmed the Director’s Decision (Paragraphs 83 to 84).

14.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, state protection, Torture Risk, Persecution Risk, and BOR 3 Risk, and the finding of BOR 2 Risk, which are all matters primarily within the province of the decision-making body.

15.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

16.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

17.  The Applicant may make an appointment with my clerk for this decision to be interpreted to her in Chinese, if she wishes.

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