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HCAL 750/2022
[2026] HKCFI 1345
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 750 OF 2022
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BETWEEN
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Hoang Thi Van |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. The Applicant is a 58-year-old national of Vietnam who had previously in August 2018 entered Hong Kong illegally and was subsequently arrested and in September 2018 repatriated to Vietnam did so again in August 2020 and was arrested by police on 12 October 2020 for illegal entry and engaged in unauthorized employment, and for which she was convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her debts.
2. The Applicant was born and raised in Xa Dong Hai, Huyen An Hai, Hai Phong, Vietnam. After leaving school she worked as a hawker selling clothes to make her living, married her husband and raised a family with 2 children in her home district.
3. In 2017 her marriage ended in a divorce, and in order to support her children she borrowed a loan from a local money-lender with monthly interests payments which she initially managed to make from her hawking business.
4. However, by the end of 2017 she started to default in her loan repayment, whereupon her creditor sent men to threaten her that she became fearful for her life and fled to Mong Cai, and in August 2018 she departed Vietnam for China, and from there she later sneaked into Hong Kong to look for jobs, but was subsequently arrested and repatriated to Vietnam.
5. Upon returning to her home village, her creditor soon came again with his followers to threaten her, and on one such occasion she was slashed with a knife in her left leg and was warned that next time she would be killed if she still failed to repay her loan, and so the Applicant in August 2020 again departed Vietnam for China, and from there she again sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 January 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 22 March 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her 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”).
7. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant 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 the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Da Nang or Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.
8. On 8 April 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 23 August 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 4 July 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.
9. In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor over her unpaid debts that caused her to leave her country to come to Hong Kong to seek protection, that even if her account of events prior to her departure of Vietnam were true that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.
10. On 10 August 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in her Form or her supporting affirmation of the same date other than a regurgitation of her claim as before and with some limp arguments that internal relocation to other part of Vietnam would not be feasible to her based on some bare and uncorroborated assertions that her health is not good and that gangsters like her creditor have nationwide social network to locate her, all of which should have been raised in her appeal for determination by the Board instead of in her present leave application for judicial review before the Court. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.
11. 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.
12. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
13. 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. Moreover, the Applicant recently on 19 December 2025 in writing requested to withdraw her application as her problem in her home country has been resolved that she now wants to return to Vietnam as soon as possible.
15. In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her leave application.
Dated the 5th day of March 2026
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(Chung Lai Fan, Christine)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 5 March 2026
Hoang Thi Van
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 5 March 2026
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 17816/21/4/19/V2821
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 6/21 (formelry RBCZ 10966/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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