NGUYEN THI THANH CHI acting as the next friend of NGUYEN MY KY v. TORTURE CLAIMS APPEAL BOARD

HCAL 604/2026

[2026] HKCFI 3362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 604 of 2026

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.  The extension of time for the application for Judicial Review be refused;

2.  The application for leave to apply for Judicial Review be refused; and

3.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st named is the mother (“the mother”) acted as the next friend of the applicant, her daughter, (“the daughter”) born on 2 October 2019. They are illegal immigrants. The mother gave birth to the daughter in Hong Kong.

2.  This application is related to HCAL 2924 of 2018, in which the family comprising of the parents and other children applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dismissing their appeal against the decision of the Director of Immigration (“the Director”), which refused their non-refoulement claim. The 1st name was the mother of the family. The applicant was not yet born at that time. By an Order dated 19 October 2023, this Court dismissed the family’s application in HCAL 2924 of 2018.

3.  The mother lodged the non-refoulement claim for the applicant. The Director refused her claim. Acting for the applicant, the mother appealed to the Board, which dismissed her appeal.

4.  The applicant applies for leave to apply for judicial review of the Decision dated 18 April 2023 of the Torture Claims Appeal Board (“the Board’s Decision”) dismissing her appeal against the Director’s Decision as described below. Her application relies upon the facts of the mother. Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision, which expired on 18 July 2023. Her application was filed on 20 March 2026, which is late for more than two and a half years. This issue will be dealt with below.

5.  The applicant did not ask for a hearing. I shall deal with her application on the papers.

6.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board, the Director of Immigration is the interested party, and the 1^st applicant is the next friend of the 2^nd applicant.

The applicant

7.  The applicant is a national of Vietnam.

8.  The applicant lodged a non-refoulement claim, on the basis that, if refouled, the mother will be harmed or killed by the creditor of the father who was unable to repay a loan.

9.  Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000604_2026_files/the_Board's_Decision.pdf

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.  By way of Notice of Decision dated 17 August 2020 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 21 March 2023, the Board conducted an oral hearing for the appeal. The mother and the father were present and they had answered the Board’s questions. The Board advised the parents that it relied on the findings of decisions of a differently constituted Board which dismissed the family’s appeal against the Director’s decision rejecting their non-refoulement claim. [19]

13.  The Board adopted the previous Board’s findings that the parents’ evidence was not credible. The Board accepted a medical report from the parents that showed that the applicant is suffering from autism.

14.  The Board enquired with the father if there will be any child-specific risks that the applicant may face if she returns to Vietnam with the family. The father replied that she would face the same risk as other family members. [20]

15.  Having considered the evidence, the Board made the findings below.

(1)  The applicant is autistic. [23]

(2)  The Board observed that the Autism Spectrum Disorder (“ASD”) is a relatively common condition, and that there are treatments available to those diagnosed with ASD. [24]

(3)  The Board accepted the previous Board’s finding that the majority of the parents’ evidence had been fabricated. [33]

(4)  The family had failed to establish that they would suffer the specified harm if they are refouled to Vietnam. [34]

(5)  The applicant will not be liable to the harm described in the family claim if she returns to Vietnam. [38]

(6)  From the research, there will be special care and treatment available for persons with autism in Vietnam, in particular in Ho Chi Minh City, where the applicant’s family formerly resided. [42]

(7)  The applicant’s claim on the applicable risks failed.

16.  For the reasons above, the Board dismissed the appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

17.  The applicants filed Form 86 on 20 March 2026 for leave to apply for judicial review of the Board’s Decision.

18.  In support of their application, the mother has raised the grounds below to challenge the Board’s Decision.

(1)  The applicant is late because the family’s previous application for leave to apply for judicial review of the board’s decision was refused and they do not have legal advice. The parents have to deal with the education of the applicant, who is autistic.

(2)  The Board is wrong to find that the majority of their evidence was fabricated.

(3)  The Board is wrong to find that there will not be a real risk if the applicant returns to Vietnam.

(4)  The Board is wrong to find that the applicant will have access to specialist care and education she needed in future in Vietnam

DISCUSSION

19.  As mentioned in paragraph 4, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider, inter alia, the prospect of the intended appeal. I shall consider the merits of the applicant’s case.

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

22.  It is apparent that the applicant was not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation, and to have separate consideration of the child specific issues as the minor is more venerable to the applicable risks than the parent.

23.  The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53 further held:

“33. … 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 any 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 leave 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.”

24.  As to the reasons under paragraph 18, the first reason is not acceptable as the delay is long and there is no reason for the parents not to follow up the matter.

25.  The 2^nd reason will not assist the applicant in this application because the Board has to consider all the relevant evidence relating to the claim, and it was entitled to take into consideration of the evidence and findings of the previous Board. In NMW v The Torture Claims Appeal Board/Non-refoulement Claims Petition Office with the Director of Immigration as interested party [2022] HKCFI 3463, the court held:

“48. It is accepted that in assessing the credibility of the applicant’s claim for non-refoulement protection, the Board must consider all the relevant evidence available before it holistically, such evidence includes the document or corroborative evidence adduced by the applicant or gathered by the determining authority including the Country of Origin Information (“COI”). The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, 21 December 2012 held:

‘176. …the Court should assess the risk at the time of the proceedings, taking account of information … in order to ensure that the Court is able to make a ‘full and up-to-date assessment’ of the current situation.’

49. In order to make a ‘full and up-to-date assessment’ of the current situation, it is accepted that the evidence of the case must be considered ‘in the round’, KM v Torture Claims Appeal Board [2020] 3 HKC 608 [LA/9] at §38.”

26.  The Court of Appeal in MD Nazir Ahmed Sarkar v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2021] HKCA 918, held:

“37. … the judge was correct in holding that the ruling of the Board could not preclude the NRCPO from conducting an oral hearing and then acted upon the evidence obtained at such hearing …

39. Having said so, we should also state that it was the duty of NRCPO to determine the appeal regarding BOR 3 claim which involved the consideration of issue of risk of harm. In that regard, the adjudicator had to assess to what extent he should attach weight to the assessment of the Board in light of the evidence, including the answers given at the oral hearing in the NRCPO proceedings.”

27.  The Board had decided it would rely on the findings of the previous Board, in particular, the credibility of the parents’ evidence.

28.  Grounds (3) and (4) relate to the finding of the facts by the Board. This is within the province of the Board. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

29.  There is no reason that this Court should intervene with the Board’s finding of the facts.

30.  The applicant therefore fails to show that there is any realistic prospect of success in the proposed judicial review.

DISPOSITION

31.  I refuse to extend time for the applicant to apply for leave for judicial review of the Board’s Decision. Accordingly, I dismiss the application.

32.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the applicant’s application a nullity.

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