NGUYEN PHUONG THAO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 834/2022

[2026] HKCFI 4703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 834 of 2022

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 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 26 August 2022 (“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 16 August 2022 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 9 December 2021 in refusing the applicant’s non-refoulement protection claim. She named the Board as the proposed respondent and the proposed interested party.

2.  I amended the Form 86 on my own motion to name the Director but not the Board as the putative interested party.

3.  The applicant requested for a hearing but she was absent at the scheduled hearing on 10 August 2026. From the court record, the Notice of Hearing dated 20 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 even killed by a loan shark from whom she had borrowed money to fund her clothing business. 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 here.

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 both of the Form 86 and her affirmation filed in support of the application, the applicant did not raise any specific grounds to challenge the Board’s Decision. In particular, she has not pointed to any errors of law, procedural unfairness or irrationality of the Board’s Decision.

9.  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. It took into consideration the applicant’s case and all the relevant evidence, including the fact that having regard to all the circumstances of the applicant’s case, the Board was satisfied that she had provided everything she wished and it was appropriate for the Board to proceed without offering her the opportunity to attend an oral hearing: ST v Betty Kwan & Director of Immigration [2013] 3 HKC 87.

10.  After thoroughly analysing and assessing the above, the Board came to the findings and conclusions that none of the grounds was made out.

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

CONCLUSION

12.  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