HUA THI HUONG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

HUA THI HUONG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

Leave to apply for judicial review was granted because the Board's decision failed to give separate consideration to the minor applicant's claim, which is an error of law under established authority; that failure gives the applicants a realistic prospect of success and therefore justifies leave.

Citation
[2024] HKCFI 1928
Parties
1st Applicant: Hua Thi Huong; 2nd Applicant (minor): Nguyen Duc Tu; Putative Respondent: Torture Claims Appeal Board/Non-refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 August 2024
Case Number
HCAL1210/2019
Procedural Posture
Application for Leave to Apply for Judicial Review / Leave Granted (applicants Must Issue Originating Summons)
Outcome
Leave granted to the applicants to apply for judicial review of the Board's decision dated 10 April 2019
Legal Topics
Non Refoulement, Torture and CIDTP (article 3 Hkbor), Right to Life (article 2 Hkbor), State Protection, Internal Relocation, Child Asylum Claims, Leave to Apply for Judicial Review, Standards of Review (wednesbury/unreasonableness)
Source Language
EN
Constitutional and Administrative Law Immigration Law Human Rights Law Refugee Law Non Refoulement Torture and CIDTP (article 3 Hkbor) Right to Life (article 2 Hkbor) State Protection +4 more

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Parties

Hua Thi Huong

1st Applicant

Nguyen Duc Tu

2nd Applicant (minor)

Torture Claims Appeal Board/Non-refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review / Leave Granted (applicants Must Issue Originating Summons)

Legal Issues

  1. 1 Whether the Board erred in law by failing to consider the minor applicant's claim separately
  2. 2 Whether the Board misapplied country of origin information and wrongly assessed availability of state protection
  3. 3 Whether the Board set the threshold for Article 3/HKBOR/torture too high in assessing injuries and state acquiescence

Ratio Decidendi

Leave to apply for judicial review was granted because the Board's decision failed to give separate consideration to the minor applicant's claim, which is an error of law under established authority; that failure gives the applicants a realistic prospect of success and therefore justifies leave.

Court Disposition

Leave granted to the applicants to apply for judicial review of the Board's decision dated 10 April 2019

Orders

  • Leave granted for the applicants to apply for judicial review of the Board's Decision
  • Applicants must issue the originating summons within 14 days after the grant of leave in accordance with Order 53 rule 5 of the RHC