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

HCAL 3642/2019

[2025] HKCFI 1446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3642 of 2019

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.   Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

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

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 6 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 22 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 26 July 2018 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.  On my own motion, I have amended Form 86, correctly naming only the Board and the Director as the proposed respondent and the proposed interested party respectively.

Background

3.  The Applicant’s personal background, the incidents alleged by her in support of her non-refoulement claim that she would be at risk of being harmed or killed by her creditor in Vietnam, and the immigration and procedural history, etc. can be found in the Board’s Decision.  It is not necessary for me to restate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise specified, I shall adopt the Board’s abbreviations and descriptions herein. 

Discussion

4.  The requirement for leave to apply for judicial review operates to filter out unarguable challenges: see section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court, Cap. 4A.  Obviously, the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676 and leave ought to be refused.    

5.  I have reminded myself of the enhanced standard that should be adopted in scrutinizing the decision of the Board due to the seriousness of the issues at hand: see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  The Board found that there was no or no reliable evidence to show (i) the existence of the Business, the Loan and the Incidents, (ii) the ill-treatment by the Creditor on the Applicant had attained the requisite severity, (iii) the Creditor was a public official relating to the state of Vietnam, (iv) any public official, or persons able to wield the authority of the government and/or state had any connection with this claim, (v) the Creditor had ill-treated the Applicant with an intention listed in the definition of torture, (vi) the ill-treatment alleged by the Applicant had any relevance to the interest and/or benefit of the Vietnamese government, (vii) the Applicant had a well-founded fear of persecution, and (viii) the state of Vietnam was unwilling or unable to afford protection to the Applicant, etc. (see §§56-62 of the Board’s Decision).  Based on these findings of facts and the application of the relevant law and legal principles, the Board concluded that there was no Persecution Risk (§§64-70), BOR 2 Risk (§§71-75), BOR 3 Risk (§§76-82), or Torture Risk (§§83-87).

6.  The assessment of the evidence, COI materials, risk of harm, state protection and viability of internal relocation as set out in the Board’s Decision were primarily within its province.  The Applicant has been unable to show any errors of law committed by the Board, or that there was any procedural unfairness or irrationality in the Board’s Decision.  The Applicant has failed to identify any grounds for judicial review in this case: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.

7.  The Applicant is also in breach of her duty to make full and frank disclosure of all material facts known to her and the potential legal answers to her claims: see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35.  The fact that she acts in person does not relieve her of such duty nor provide answer for the non-compliance.  She is required to provide the Court with all relevant information and adequate assistance in the papers filed for the filtering process to be properly performed.  It is unacceptable for her to simply express ‘disagreement’ with the Board’s Decision in her supporting affirmation, hoping that the Court may adjudicate the matter afresh in the absence of any valid public law grounds.    

8.  As has been repeatedly emphasized by the Court, its role in a judicial review is not to provide a further avenue of ‘appeal’. Unless there are sufficient public law errors or grounds, the Court should not usurp the role of the Board or intervene by way of judicial review: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

Conclusion

9.  For the above reasons, I make an order that Form 86 be amended as described and the Leave Application be dismissed.

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