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

HCAL 3477/2019

[2025] HKCFI 3577

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3477 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 the Applicant being absent in open court;

1.  The Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 November 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 14 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) in Chinese dated 7 July 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003477_2019_files/the_Board's_Decision.pdf

2.  Notwithstanding the fact that the Form 86 is in the Chinese language, I find it more convenient to render this decision in the English language as the Board’s Decision is in English.

3.  In the Form 86, the applicant named the Board as the interested party. As the Director should have been the interested party, the Form 86 will be amended accordingly on the court’s own motion.

4.  The basis of the applicant’s claim is that (1) she would be harmed or killed by the triad‑connected loan shark for the paid loans; and (2) she feared she would be arrested by the police for having accidentally damaged a small statue of Ho Chi Minh. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

5.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 24 July 2025. A notice of hearing with a reminder[1] of the consequence of absence dated 17 June 2025 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

6.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

7.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  The applicant did not provide any grounds in the Form 86. In the supporting affirmation, the applicant repeated the similar account before the Board and stated that she was very scared.

10.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, the Board did not find the applicant a credible witness. It did not accept the applicant’s account about the loan. Neither did the Board accept the incidents of the threats or assault. The Board also found that on the applicant’s own account of the injuries, they did not attain the required level of severity, and further that the risk she faced was of a localized nature. Thus, the Board concluded there was no real risk of harm. The Board also found that state protection and internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant advanced no grounds at all in support of the Leave Application. Hence, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Orders

12.  The Form 86 be amended on the court’s own motion.

13.  The applicant’s application for leave to apply for judicial review 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