DOAN THI HA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

DOAN THI HA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

The Court refused leave because the Board's findings were within its exclusive fact-finding remit, supported by evidence and credible country information, there was no procedural unfairness or error of law, and the Board's decision met the enhanced Wednesbury standard; consequently the proposed judicial review had no realistic prospect of success.

Citation
[2023] HKCFI 2307
Parties
1st Applicant: Doan Thi Ha; 2nd Applicant: Pham Ky Duyen; 3rd Applicant: Pham Tue Lam; 4th Applicant: Pham Dieu Linh; 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
11 September 2023
Case Number
HCAL1030/2019
Procedural Posture
Judicial Review (leave to Apply) Under Order 53 / Decision on Leave Application (leave to Amend Granted; Leave to Apply Refused)
Outcome
Leave to amend the notice of application granted; leave to apply for judicial review refused
Legal Topics
Non Refoulement, Torture Risk, Procedural Fairness, Wednesbury Unreasonableness, Internal Relocation, Leave to Apply for Judicial Review, Child Specific Claims
Source Language
EN
Immigration Constitutional Law Administrative Law Human Rights Non Refoulement Torture Risk Procedural Fairness Wednesbury Unreasonableness +3 more

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Parties

Doan Thi Ha

1st Applicant

Pham Ky Duyen

2nd Applicant

Pham Tue Lam

3rd Applicant

Pham Dieu Linh

4th Applicant

Torture Claims Appeal Board / Non-Refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Judicial Review (leave to Apply) Under Order 53 / Decision on Leave Application (leave to Amend Granted; Leave to Apply Refused)

Legal Issues

  1. 1 Whether the Board erred in law or acted procedurally unfairly or irrationally in dismissing non-refoulement claims
  2. 2 Whether state protection and internal relocation were reasonably available
  3. 3 Whether the 1st Applicant's evidence was credible and supported a real risk of harm

Ratio Decidendi

The Court refused leave because the Board's findings were within its exclusive fact-finding remit, supported by evidence and credible country information, there was no procedural unfairness or error of law, and the Board's decision met the enhanced Wednesbury standard; consequently the proposed judicial review had no realistic prospect of success.

Court Disposition

Leave to amend the notice of application granted; leave to apply for judicial review refused

Orders

  • Leave to amend the notice of application for leave to apply for judicial review (Form 86) granted
  • 2nd to 4th Applicants granted leave to make the leave application out of time and added to the application