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HCAL 429/2021
[2026] HKCFI 588
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 429 of 2021
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BETWEEN
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Pham Thi Du |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
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 (Non-refoulement Claims) Philips Wong:
1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; (2) the Director of Immigration be named as the Putative Interested Party; and (3) the date of the decision in respect of which relief is sought be amended to 12 March 2021.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 25 March 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 2 July 2020.
2. The Court is not aware of any decision issued by the Board on 2 July 2020 (I note that the Applicant attended a hearing before the Board on 2 July 2020). The Applicant’s non-refoulement claim was dismissed by the Board on 12 March 2021 (the “Board’s Decision”). It is likely that the Applicant had mistaken about the date of the decision. I make an order to amend the date of the decision on the Form.
3. In the Form, the Applicant named herself as the proposed respondent. The Applicant did not name any proposed interested parties. As it is trite that the Board should be the proposed respondent and the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.
4. The Applicant requested an oral hearing for the Leave Application. The hearing took place on 27 October 2025 but the Applicant did not attend the hearing. Notice of Hearing was issued to the Applicant in advance at the address provided by the Immigration Department in the letter dated 2 October 2025. As the Notice of Hearing was not issued to the address provided by the Applicant on the Form, the Court directed another hearing and that the notice of such hearing should be issued to both the address stated on the Form as well as the address provided by the Immigration Department.
5. A new hearing was accordingly scheduled on 12 January 2026. This time, the new Notice of Hearing was issued in advance to the Applicant at both addressed as directed by the Court above. Attempt was also made to contact the Applicant and remind her of the new hearing by phone at the number provided by the Immigration Department but in vain (the number was suspended). The Applicant did not attend the hearing on 12 January 2026. As proper notice had been given to the Applicant in respect of the hearing, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.
Background
6. The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision[1] is included below for reference.
Discussion
7. The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, 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. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
8. The Applicant did not provide any grounds in support of the Leave Application in the Form. In the supporting Affirmation, the Applicant stated that she cannot return to Vietnam because her creditor will kill her. She also said the Board had failed to consider his body condition when rejecting her claim.
9. I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board was entitled to reject the claim based on the evidence and the reasons provided (§§54-127 of the Board’s Decision), in particular because of the unreasonableness and inconsistencies in the Applicant’s evidence (§§55-56 of the Board’s Decision).
10. I find that the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.
11. As regards the alleged body condition of the Applicant as mentioned in the supporting Affirmation, the Applicant has not elaborated what condition she was referring to and how that is relevant to the Leave Application. If the Applicant was referring to the alleged assaults by her creditor and/or husband, the Board had in fact considered the same (see for instance §§75, 81-83, 114 of the Board’s Decision).
12. Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.
Conclusion
13. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 4th day of February 2026
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(Annson Cheung)
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 Applicant:
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 04/02/2026
Pham Thi Du
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 04/02/2026
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16659/20/1/21/V2424
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 972/19 (Formerly RBCZ 10762/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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