CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1463 of 2021
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BETWEEN
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Vu Thi Yen |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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 K. W. Lung:
Leave to apply for Judicial Review be refused.
Observation for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 9 August 2021 of the Torture Claims Appeal Board (“the Board’s Decision”).
2. The applicant did not ask for a hearing.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant is a national of Vietnam. She is an illegal immigrant. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her creditor because she was unable to repay her loan.
5. Details of her claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001463_2021_files/the_Board's_Decision.pdf .
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. By way of the Notice of Decision dated 18 January 2021 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 17 June 2021, the Board conducted an oral hearing for her. The applicant had given evidence and answered the Board’s questions.
9. Having considered the evidence, the Board made the findings below.
(1) The Board considered that the applicant’s evidence was her speculation without proof. [30]
(2) The Board supported its finding above by reference to the evidence of discrepancy of her evidence and the implausibility of her claim that she had borrowed a huge amount of debt from the borrower, reference having been made to the country of origin information. [41]-[61]
(3) She was not a witness of truth. [77]
10. For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 21 October 2021 for leave to apply for judicial review of the Board’s Decision.
12. In support of her application, the applicant has not raised any specific ground to challenge the Board’s Decision.
DISCUSSION
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board.”
16. The applicant has raised no valid ground to challenge the Board’s Decision.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 13th day of March 2026
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(Klein Tse)
for Registrar, High Court
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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 13/3/2026
Vu Thi Yen
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 13/3/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17574/21/1/70/V2713
Director of Immigration
Putative Interested Party’s ref. no.:
VRD/278/1/20 (CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1