PHAN THI CUC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the only putative respondent and the Director of Immigration as a putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 31 August 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) and the Immigration Department dated 18 August 2021.  According to a covering letter exhibited to the Applicant’s supporting affirmation, a decision on the Applicant’s non-refoulement claim was made by the TCAB (also sitting as the Non-refoulement Claims Petition Office (“NRCPO”)) on 18 August 2021, and this was confirmed from a reading of a copy of the relevant decision obtained from the TCAB/NRCPO Secretariat.  The Director of Immigration (“DI”) made a first tier decision on the Applicant’s non-refoulement claim on 8 February 2021 instead.

2.  The TCAB/NRCPO’s decision sought to be reviewed can be seen from the following hyperlink[1].  In the circumstances, on my own motion, paragraph 1 of the above orders is made to properly name the parties to these proceedings.  

3.  The Applicant does not require an oral hearing for this leave application; I dispose of this application by consideration of documents only.

4.  The Applicant is a Vietnamese national.  Her non-refoulement claim was based on an alleged risk of being harmed or killed by her creditor.  After an oral hearing, the Board found the alleged risk not real or substantial, there was in any event a reasonable internal relocation alternative and the claim did not fall within the meaning of torture or a Convention ground for persecution.  The Applicant’s appeal/petition against the DI’s tier-1 decision was hereby dismissed.

5.  The Applicant has not set out any ground of review in the Form 86 and the supporting affirmation.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the findings below or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

6.  I have reviewed the Board’s decision vigorously, but do not find the proposed judicial review reasonably arguable.  The leave application is thus 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