CAO THI DAU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 344/2023

[2026] HKCFI 3072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 344 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 7 March 2023 (the “Form 86”), the Application applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 8 December 2022, which affirmed a decision by the Director of Immigration (the “DOI”) dated 26 October 2021 in refusing the Applicant’s non-refoulement protection claim.  She named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The Applicant did not request for a hearing and this application is to be dealt with on paper.

Background

3.  The Applicant is a national of Vietnam.  She seeks non-refoulement protection on the basis that if she was returned, she would be subject to ill-treatment or even be killed by loan sharks from whom she borrowed money to support her son’s business.  Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  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 TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI 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 TCAB (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).

5.  In her affirmation filed in support of this application, the Applicant only reiterated her allegation of the danger of return and did not put forth further evidence in support thereof.  Further, the Applicant did not point to any particular error of law, procedural unfairness or irrationality of the TCAB of the TCAB Decision in either the Form 86 or the affirmation filed in support.

6.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including her testimony at the hearing before it [21-25].

7.  The TCAB also bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [3-20].

8.  After thorough analysis and assessment, the TCAB came to the findings and conclusions that none of the Applicant’s allegations and none of the grounds was made out [26‑56], and that internal relocation was in any event available [57-59].

9.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.  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