HOANG THI HOAN 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 putative respondent, and the Director of Immigration as 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 11 August 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board (taken to include also the Non‑refoulement Claims Petition Office, collectively “the Board”) and the Immigration Department (“ImmD”) dated 30 July 2021.  The Court’s staff later obtained from the Secretariat of the Board and ImmD copies of decisions bearing the Applicant’s name and reference numbers.  It seems the Director of Immigration (“DI”) made a tier-1 decision on the Applicant’s non‑refoulement claim on 5 February 2021, and the Board made a tier-2 decision on 30 July 2021. 

1.  The Board’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. 

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

3.  The Applicant is a Vietnamese national.  Her non-refoulement claim was based on an alleged risk of being harmed or killed by a creditor with triad background.  Without conducting any oral hearing, the Board assessed the alleged risk to be not real and not substantial.  The Board also found State protection and reasonable internal relocation alternative available. The Applicant’s appeal/petition against DI’s tier-1 decision was hereby dismissed.

4.  The Applicant did not set out any grounds of judicial review.  In relation to the lack of an oral hearing before the Board, the Board was empowered to determine the Applicant’s appeal/petition without an oral hearing if it was satisfied that a just determination could be made (see section 12 of Schedule 1A to the Immigration Ordinance (Cap. 115) and also paragraph 11 of the Petition Guides 2019 and 2021).  In its written decision, the Board specified how it applied the guidance in ST v Betty Kwan [2014] 4 HKLRD 277 (see its paragraph 19) in reaching its decision that no oral hearing was required. 

5.  In terms of the procedural history before the Board’s decision, according to the DI’s tier-1 decision, the Applicant had attended a screening interview with the ImmD, then with the assistance of the Duty Lawyer Service. In the notice of appeal/petition against the tier-1 decision, the Applicant simply said she did not agree with the tier-1 decision, she could not go back to Vietnam because of the huge amount of money she owed, she had no capability of making repayment, the creditor had wanted to catch and harm her, her life would be in danger if she returned to Vietnam and she wanted to stay in Hong Kong for a further period of time to resolve the issue.  There was no mention in the notice whether the ImmD/DI had omitted anything in the tier-1 process or that there would be further factual evidence or country information on which she might rely to establish her claim and/or lead to a different outcome from the tier-1 decision.  

6.  In the present application for leave to apply for judicial review, the Applicant has not indicated what additional information or argument she would have provided or put forward if she had been given an oral hearing before the Board.  

7.  On the facts of this particular case, the Board’s assessment that an oral hearing was not required for a just determination of the appeal/petition did not, in my view, lead to any question of procedural unfairness.  I am satisfied that, upon a proper application of the guidelines in ST v Betty Kwan, the appeal/petition could be, and was, justly determined without an oral hearing.

8.  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 Board’s findings 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).

9.  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