TRAN THI LUA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1757/2023

[2026] HKCFI 3467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1757 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 February 2023 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 24 May 2023. Her application was filed on 3 October 2023, which is late for more than 4 months. This issue will be dealt with below.

2.  The applicant appeared before the Court on 3 June 2026.

The applicant

3.  The applicant is a national of Vietnam. She is an illegal immigrant. She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she will be harmed or killed by her husband’s creditors because he was unable to repay his loans.  Details of her story are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001757_2023_files/the_Board's_Decision.pdf

The Director’s Decision

4.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.  By way of Notice of Decision dated 27 April 2022 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

6.  The applicant appealed the Director’s Decision to the Board. On 29 December 2022, the Board conducted an oral hearing for both the applicant and her husband who had also made a non-refoulement claim, which was refused by the Director and he had appealed to the Board. The husband attended the hearing, but the applicant was absent without giving any reason for her absence. The applicant and her husband live together. The Board considered that it was not reasonable for the applicant not to appear before the Board for the hearing. It therefore proceeded to hear the husband’s evidence and considered the applicant’s appeal. Since the applicant was absent, the Board took the view that she was unable to prove her case with evidence. [109] & [110] The Board considered the applicant’s appeal, based upon her husband’s evidence because she referred to her husband’s claim for her own non-refoulement claim. [111]

7.  Having considered the evidence, the Board made the findings below.

(1)  Her husband’s evidence had a lot of inconsistencies in his allegations and he is not a creditable witness. [43] & [44]

(2)  The moneylender is not a state actor and the state. [67]

(3)  State protection is available to the applicant if she returns to Vietnam. [69]

(4)  Internal relocation is viable. [106]

8.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

9.  The applicant has filed Form 86 dated 3 October 2023 for leave to apply for judicial review of the Board’s Decision.

10.  In support of her application, the applicant has raised that the Board’s Decision is unreasonable; that it had place too much reliance on the country of origin informaton; that it was procedurally unfair and that is should have allowed her appeal. These are brief reasons because the applicant said before the Court that the Board’s Decision is not wrong.

DISCUSSION

11.  As mentioned in paragraph 1, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider, inter alia, the prospect of the intended appeal. I shall consider the merits of the applicant’s case.

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was not wrong and she simply asked the Court to review the Board’s Decision.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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.”

15.  The applicant has not given any explanation for her delay. The reasons under paragraph10 are insignificant as the applicant agreed before the Court that the Board’s Decision is not wrong.

16.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her 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