TO THI SANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 868/2020

[2025] HKCFI 3743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 868 of 2020

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 from the Applicant in open court;

1.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party, replacing “20-04-2020” with “29-04-2020”,and adding “/Non-Refoulement Claims Petition Office” before the word “dismissed”;

2.   Application for leave to apply for Judicial Review be dismissed.   

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Vietnam.  By a Form 86 filed on 11 May 2020 (“Form 86”), and a supporting affirmation also filed on 11 May 2020 (“the Affirmation”), she sought leave to apply for judicial review judicial review of a decision, said to be of the Torture Claims Appeal Board (“TCAB”) dated 20 March 2020.  However, no such decision was exhibited to the Affirmation. 

2.  The Applicant sought an oral hearing of her application.  She appeared at such and confirmed that the relevant decision relating to her application for leave was made by the TCAB dated 29 April 2020 (which is also clearly a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) (“TCAB Decision”)[1].  She said she had nothing else to add.

3.  I have hence amended the Form 86 of my own motion to reflect the identity of the proper putative respondent and interested party, and the decision in respect of which relief is sought.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein. 

Background

4.  The Applicant’s background and case as to the incidents underlying her claim for non‑refoulement relief are set out in the TCAB Decision.  I will not repeat them but, in essence:

a.  The Applicant claimed non-refoulement protection on the basis that if she were to be sent back to Vietnam she would be harmed or killed by a moneylender, one Duc;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 22 November 2019 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 19 March 2020; and

d.  The TCAB Decision was dated and handed down on 29 April 2020. It rejected the Applicant’s petition/appeal and confirmed the Director’s Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380). 

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886). 

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). 

Discussion

8.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. 

9.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.  

10.  The TCAB/NRCPO began by setting out the Applicant’s immigration and procedural history, the four types of risk in question, the nature of the proceedings before the TCAB/NRCPO, and the format of the remainder of the TCAB Decision (Paragraphs 1 to 7). 

11.  It then outlined the Applicant’s case (Paragraphs 8 to 10), and the content and relevant principles as to the four types of risk, noting that the Applicant had not claimed or adduced evidence that a consistent pattern of gross, flagrant, or mass violations of human rights existed in Vietnam and that there were circumstances where a threat from non-state parties might be relevant to BOR 2 Risk (Paragraphs 11 to 22).  The burden and standard of proof were also set out (Paragraphs 23 to 25) as was the relevant approach in relation to COI (Paragraphs 26 to 28). 

12.  The decision-maker moved on to address various issues before it such as the relevant time for determination of risk, its approach to and consideration of the evidence given and the Applicant’s credibility, whether there was a nexus on the facts of the case to a Convention ground, and as to the sufficiency of state protection.  It observed that there was nothing to suggest that Duc was a state agent or that he had connections with the state, state agents, “underground figures”/triads, or that he had any power or influence outside the Applicant’s home area (Paragraphs 29 to 73). 

13.  The TCAB/NRCPO then made material findings of fact, including that no Convention ground had been established in relation to Persecution Risk, that most if not all of the core assertions as to the non-refoulement claim had been fabricated or were wholly unreliable, and that it did not accept that the Applicant was a credible or reliable witness.  Other specific findings were made on the evidence, including that (i) there was no or no reliable evidence that Duc was anything more than a local moneylender or had connections with people in public office/government and/or the state (ii) there was no or no reliable evidence that the government/state/other authorities in Vietnam had acquiesced in the Applicant’s alleged ill-treatment, were unwilling or unable to afford her protection, or were unwilling to help her for a Convention reason (iii) it had not been shown that the Vietnamese government had failed in its duty to provide sufficient state protection (iv) there was no evidence to show that Duc had ill-treated the Applicant with an intention relevant to Torture Risk; and (v) the Applicant had failed to discharge her burden to prove that her fear was well-founded as she had failed to provide objective grounds showing there was a real chance/risk that her claimed fear would materialise (Paragraphs 74 to 89).

14.  While the decision-maker indicated those findings would be applied in considering Persecution Risk, BOR 3 Risk, BOR 2 Risk, or Torture Risk, before doing so she also considered internal relocation, finding on the evidence that the Applicant had not demonstrated that she was unable to internally relocate, and that there was no evidence that such relocation would cause her to suffer any undue hardship.  Given the above, the TCAB/NRCPO found that the Applicant had failed to establish her claims for non‑refoulement protection under Persecution Risk, BOR 3 Risk, BOR 2 Risk, or Torture Risk, as she had failed to establish a well-founded fear of persecution, a real risk/substantial grounds of prohibited treatment, and to satisfy the elements of Torture Risk.  The Director’s Decision was accordingly affirmed (Paragraphs 90 to 97). 

15.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient to vitiate the TCAB Decision.  This is especially so as to the assessment, reasoning, and findings regarding credibility, state protection, the risk of harm, Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk, and internal relocation, which are all matters primarily within the province of the decision-making body. 

16.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. 

Conclusion

17.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above. 

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