PHAM THI YEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2118/2023

[2026] HKCFI 3963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2118 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 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 27 November 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 10 November 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 11 August 2021 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 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 did not request for a hearing and this application is to be dealt with by consideration of the documents only.

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 hurt by loan sharks from whom she had borrowed money to fund her cosmetic business. Her personal background, the relevant facts and relevant procedural history have been 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 the Form 86 filed for this application, the applicant has not mentioned any specific grounds to apply for leave for the judicial review save to state in the affirmation in support that if she were to be refouled to Vietnam, she will face a “genuine and substantial risk of being subject to torture or even killed by creditor”. She did not mention any error of law, procedural unfairness or irrationality in the Board’s Decision.

7.  Having looked at the Board’s Decision, I find the Board has carefully taken into consideration of the applicant’s case and evidence [25-38], including the applicant’s testimony at the hearing before it.

8.  In my view, the Board bore in mind the correct principles in respect of each of the four applicable grounds under the USM [3-23], thoroughly analysed each, including the applicant’s credibility, before coming to the findings and conclusions that the applicant’s application for non-refoulment protections fails on all applicable grounds.

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

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