DINH THI MAI TRUC AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1598/2020

[2026] HKCFI 1156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1598 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 the 1st and 2nd Applicants (“the Applicants”) being absent in open court;

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicant:

1.  The 1^st Applicant (“A1”) is a 31-year-old national of Vietnam who entered Hong Kong illegally in early May 2019 and was arrested by police on 7 May 2019. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her debts, and some 4 months later on 30 September 2019 after giving birth to her son, the 2^nd Applicant (“A2”) in Hong Kong, she also raised a non-refoulement claim for him based on her own claim. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised in a village in Thuy Nguyen City, Hai Phong, Vietnam. After leaving school she assisted in her parents’ farming in her home village to make her living and to support a daughter born out of her relationship with some man in the village.

3.  In 2018, she started her own stall selling clothes with the help of a loan borrowed from a local money-lender with monthly interests payments which she initially managed to make from her business income.

4.  However, her business did not fare well, and by October 2018 she had to close down her shop, and when she defaulted with her loan repayment, her creditor started to send men to threaten her, and after being beaten by those men severely on several occasions, she became fearful for her life and fled from her home village to hide in her aunt’s place, and in late April 2019 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, and after subsequently giving birth to A2, she also raised the same claim for him, and for which she completed a Non-refoulement Claim Form (“NCF”) on 20 September 2019 jointly for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 20 March 2020 the Director of Immigration (“Director”) rejected the claims of both A1 and A2 on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision, the Director took into account of all the relevant circumstances of the respective claims of both Applicants and assessed the level of risk of harm from A1’s creditor upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from A1’s creditor, that there is no evidence of any real intention of A1’s creditor to seriously harm or kill her or that the creditor had any knowledge of the existence of A2 at all let alone to form any intention to harm him, that in any event it was a private monetary dispute between A1 and her creditor only without any official involvement that state or police protection would be available to both Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 98 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with A2 to other areas of the country away from her home village in large cities such as Hanoi or Da Nang where it would be difficult if not impossible for her creditor to locate them.

7.  On 27 March 2020, the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which A1 attended an oral hearing on 25 May 2020 before the Board during which she gave evidence for herself and A2 and answered questions raised of their claims by the Adjudicator for the Board. On 16 July 2020, their appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found no reliable evidence of any real intention of A1’s creditor to seriously harm or kill her other than to press her to repay her debts, nor is there any evidence that her creditor knew of the existence of A2 who was acknowledged by A1 during the hearing to have been conceived out of her relationship with another Vietnamese man prior to her departure of Vietnam and was born upon her arrival in Hong Kong, and that in any event it was a private dispute between A1 and her creditor only without any official involvement that state or police protection would be available to the Applicants upon their return to Vietnam as well as reasonable internal relocation alternatives for them to move safely to other parts of the country away from A1’s home village without any risk of being located by her creditor that their claims for non-refoulement protection failed on all applicable grounds.

9.  On 3 August 2020, the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which she just asserted that she does not agree with the decision but without putting forth any proper ground for their intended challenge, nor did they subsequently attend the scheduled hearing for their application. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge of the Board’s decision.

10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  In the Applicants’ cases, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claims as well as the personal circumstances of A2 to ensure that he is also of Vietnamese nationality as his parents and entitled to all the same rights support and protection available to him as such even though he was born outside of the country, and in the absence of any error of law or procedural unfairness in their appeal process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

12.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in the Applicants’ claims if real is a localized one and that it is not unreasonable or unsafe for both of them to relocate to other part of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  I am of course mindful of the fact that A2 being a minor at his present age of only 6 years old was without legal representation in his appeal before the Board, nor for that matter ibn his present leave application for judicial review, as required by Order 80 rule 2 of the Rules of the High Court, Cap. 4A, and hence it would be necessary to consider and examine whether his non-refoulement claim had been properly assessed and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are underlying matters that may support his potential minor-specific non-refoulement bases which may not or may not have been properly advanced to the Board due to lack of legal representation in his appeal before the Board, as held by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from their parents’ claims and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

15.  The case of Fabio Arlyn Timogan however is not authority for the proposition that any decision of the Board in relation to children claimants of tender age must be quashed if they were not legally represented, as the same Court of Appeal explained in the subsequent case of Re Jasvir [2021] HKCA 53:

  “31. … when dealing with a non-represented minor’s judicial review application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] – [54].

  32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80 rule 2 of the RHC. Alternatively, as in the case of Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the hearing before the Board. See Fabio Arlyn Timogan at [50] – [53], [56] – [57].

  33. … on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

16.  In the present case of A2, as noted above that his claim was premised fundamentally on his mother’s claim that he would be harmed or killed by her creditor over her unpaid debts upon his return to Vietnam, but of which the Board rightly rejected as no such evidence at all, and that in any event both state protection and reasonable internal relocation alternatives are also rightly found to be available to negate any such risk even if real, and as a child born to both Vietnamese parents that he would also be entitled to all the protection support and assistance available to Vietnamese citizens upon his return to Vietnam with his mother that I do not find any underlying matters that may give rise to concern that there may be any non-refoulement ground that relates specifically to A2 but which had not be advanced to the Board or considered by it due to lack of legal representation for him before the Board. Accordingly, I shall treat the non-compliance with Order 80 rule 2 of RHC in his case as a mere irregularity, as it would not serve any useful purpose for him to be legally represented given the lack of merits in his intended judicial review of the Board’s decision. See Re Jasvir at [38].

17.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their application.

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