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HCAL 3378/2019
[2025] HKCFI 3786
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3378 OF 2019
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BETWEEN
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Vu Ngoc Lam |
1st Applicant |
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Vu Anh Nguyet |
2nd 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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the decisions in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decisions dated 31 October 2019 and 7 January 2019 for the 1st and 2nd applicants respectively”.
2. The 1st applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 31 October 2019 be dismissed.
3. The time for the 2nd applicant to make the application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 7 January 2019 be extended to 4 May 2020.
4. Leave granted to the 2nd applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 7 January 2019.
Observations for the applicants:
The Leave Application
1. By way of Form 86 dated and filed on 14 November 2019, the 1st applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 31 October 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003378_2019_files/the_Board's_Decision.pdf
2. By the Board’s Decision, the Board rejected the 1st applicant’s non-refoulement claim for protection on BOR 2 Risk[1] under the Unified Screening Mechanism (“the USM”), and dismissed the 1st applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 1 December 2016 (“the Director’s 2nd Decision”).
3. Previously, by another decision dated 3 August 2016 (“the Director’s 1st Decision”), the Director rejected the 1st and 2nd applicants’ non-refoulement claims on the other three applicable grounds under the USM, namely Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4]. The 1st and 2nd applicants did not file any appeal or petition against the Director’s 1st Decision.
4. Thus, the 1st and 2nd applicants’ non-refoulement claims based on the said three risks had been disposed of by the Director’s 1st Decision, and it was not necessary for the Board to deal with them again in the Board’s Decision.
5. The Director’s 2nd Decision was dealing with both the 1st and 2nd applicants’ non-refoulement claim based on BOR 2 Risk. However, it was not necessary for the Board to deal with the 2nd applicant’s non-refoulement claim based on BOR 2 Risk in the Board’s Decision, as the 2nd applicant withdrew her petition against the Director’s 2nd Decision by way of a letter dated 12 November 2018 (“the Withdrawal Letter”).
6. Thus, the Board’s Decision only dealt with the 1st applicant’s BOR 2 Risk.
7. By way of summons and affirmation both filed on 20 January 2020, the 1st applicant applied to add his daughter, ie the 2nd applicant, as an applicant to the Leave Application. DHCJ Bruno Chan made an order in terms of the summons as requested on 4 May 2020.
8. Thus, the 2nd applicant was allowed to join in the Leave Application as one of the applicants. However, in the proposed Amended Form 86, only the 2nd applicant’s name was added, but the decision in respect of which relief is sought was not amended, ie it is the Board’s Decision for both the 1st and 2nd applicants.
9. At the oral hearing before this court on 3 June 2025, after some clarifications, the 2nd applicant (who was already 21 years old and represented herself at the oral hearing) confirmed that the decision in respect of which relief is sought for her case is the Board’s decision dated 7 January 2019 which dealt with the Withdrawal Letter.
10. The Board’s decision dated 7 January 2019 (“the Withdrawal Decision”) was in the form of a letter and it gave directions that the 2nd applicant’s appeal/petition was withdrawn and the Director’s 2nd Decision was confirmed.
Amendments
11. In the title of Form 86, the 1st applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the 1st putative respondent and “Director of Immigration” as the 2nd putative respondent.
12. On the other hand, in the contents of Form 86, the 1st applicant stated that “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” was the putative respondent and “Director of Immigration” was the putative interested party.
13. However, only the Board should be the putative respondent. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a putative respondent at all.
14. Also, the Director should not be named as the 2nd putative respondent in the title of Form 86, as the Director should just be the putative interested party.
15. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the Director is added as the putative interested party.
16. As aforesaid, regarding the 2nd applicant, the decision in respect of which relief is sought in the Leave Application should be the Withdrawal Decision. Thus, the decisions in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decisions dated 31 October 2019 and 7 January 2019 for the 1st and 2nd applicants respectively”.
The applicants’ case
17. It is not necessary for this court to repeat the details of the 1st applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
18. In sum, the 1st applicant claimed for non-refoulement protection because he feared that if refouled to Vietnam, his creditors and their men would harm or kill him as he could not repay the sum of money that he owed them.
19. As to the 2nd applicant’s case, she also alleged that she would be harmed or killed by the 1st applicant’s creditors for his debt. In other words, she would face the same risk as the 1st applicant if refouled to Vietnam, and she did not raise any other risk.
Oral hearing
20. The applicants requested for an oral hearing of the Leave Application and their case was heard on 3 June 2025.
21. At the hearing, the 2nd applicant said that the withdrawal application by way of the Withdrawal Letter to the Board was not made out of her own volition. At the time when the Withdrawal Letter was made, she was only about 14 or 15 years old and because the 1st applicant was in prison, she was under the guardianship of her aunt, ie the 1st applicant’s elder sister. Although her aunt had told her that she was withdrawing the appeal for her, she was not in a position to object as she was then a minor. The 2nd applicant also told this court that the Withdrawal Letter was issued by her aunt.
22. The 1st applicant claimed that he was not aware of the withdrawal application made by his elder sister for the 2nd applicant. He and the 2nd applicant did not want to withdraw the appeal at all.
23. However, as a copy of the Withdrawal Letter was before this court and it indicated that the Withdrawal Letter was signed by the 1st applicant as the father for the 2nd applicant, this court asked the 1st applicant to clarify if he had signed the Withdrawal Letter. The 1st applicant just said that he did not remember if he had done so.
24. When this court asked the applicants for their grounds for the intended judicial review, the 1st applicant just said that he still had debts in Vietnam, the creditors were still hunting for him and hence he did not want to go back to Vietnam.
25. As to the 2nd applicant, she said that she had long lost contact with her mother and had no other family members in Vietnam. Hence, she would like to stay in Hong Kong with the 1st applicant.
26. The 2nd applicant also claimed that she would be in danger if refouled, as the creditors had seen her when they came for debt collection and would be able to recognize her. When this court asked her how old she was at that time when the creditors came, she said she was about 9 or 10 years old, and the creditors might use her to force her father to repay the debt. When this court asked the 2nd applicant why she thought the creditors would be able to recognize her as she was already 21 years old, the 2nd applicant replied that her face did not change much over the years.
Grounds for judicial review
27. The applicants are required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
28. The applicants did not provide any ground for the intended judicial review in Form 86, nor in the supporting affirmations dated 13 November 2019 and 20 January 2020.
29. As aforesaid, the applicants did not advance any ground for the intended judicial review at the oral hearing either, save that the 2nd applicant asserted that the withdrawal application made by her aunt on her behalf was not made out of her own volition.
Discussion
30. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
31. Thus, this court will examine and scrutinize the Board’s Decision and the Withdrawal Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicants for the intended judicial review.
32. In assessing the 1st applicant’s appeal/petition, the Board held an oral hearing on 20 August 2019. Hence, the 1st applicant did have a chance to present his case to the Board in person.
33. The Board found what the 1st applicant said at the oral hearing different in many aspects from his claims recorded in the hearing bundle. The Board also noted that the 1st applicant was evasive to many of the questions put to him and he did not give direct answers even for simple and straightforward questions. Besides, the Board found that there were quite a number of suspicious allegations and inconsistencies during the hearing, and such discrepancies in the evidence were too numerous and impossible to be reconciled, rendering the evidence unreliable.
34. Thus, the Board concluded that the 1st applicant was not a reliable witness and that his version of story was not believable. Apart from his personal and family background and his working history, the Board did not accept all the other matters of the 1st applicant’s case, including the alleged loans, the stated threats and assaults by the creditors. In any event, the Board found that the alleged injuries suffered by him were only minor and did not attain a minimum level of severity and that the creditors had no intention of killing him or otherwise depriving him of his life.
35. In assessing the availability of state protection, the Board referred to the country of origin information (“COI”) for the 1st applicant’s country from different sources. The Board found that there was no basis in the evidence to believe that any public official or person acting in an official capacity would play any part in the infliction of such harm, or instigate or acquiesce in the perpetration of the same. The 1st applicant in fact had not made any report to the police while he was in Vietnam. The Board was satisfied that there was reasonable state protection ready and available to him on his return to Vietnam if sought.
36. As to internal relocation, the Board found that as an able-bodied person in his 40’s with work and business experience in various places in his home country, he could relocate to other parts of Vietnam without undue hardship to further reduce or negate the perceived risks of harm from the creditors, which were localized in his home area.
37. After due consideration of the law and the evidence of the 1st applicant, the Board found that there were no substantial grounds for believing that the 1st applicant would be subjected to arbitrary deprivation of his life if he were to be sent back to Vietnam.
38. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
39. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
40. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the 1st applicant has failed to establish such a claim and hence leave must be refused in respect of the 1st applicant’s application.
41. As to the 2nd applicant, her claim was premised fundamentally and entirely on the 1st applicant’s claim. However, since the 2nd applicant had withdrawn her appeal/petition, the Board did not separately considered her claim. The issue before this court is whether the Withdrawal Letter was a valid withdrawal of her appeal/petition.
42. By virtue of section 37ZTA(2) of the Immigration Ordinance, Cap 115, an appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Board. The Director did send a letter dated 12 December 2018 to inform the Board that the 2nd applicant had submitted the Withdrawal Letter written by her father, ie the 1st applicant, and it stated that the 1st applicant wanted to withdraw the 2nd applicant’s appeal/petition. The Withdrawal Letter was enclosed for the Board Member’s consideration. Thus, there is no doubt that the Board did receive the Withdrawal Letter, which was a notice to withdraw the 2nd applicant’s appeal against the Director’s 2nd Decision.
43. In Re Das Purnima Rani [2019] HKCA 669, the Court of Appeal held that:-
“Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal.”
44. Thus, the validity of the Withdrawal Letter is the main issue for the 2nd applicant’s case.
45. According to the 2nd applicant’s case, the Withdrawal Letter was issued by her aunt. This allegation seems to be contradicted by the signature on the Withdrawal Letter, which indicated that it was signed by the 1st applicant as father for the 2nd applicant. However, the 1st applicant neither denied nor admitted it was his signature, but just said that he could not remember.
46. This means that there could be two different scenarios regarding the Withdrawal Letter. First, it was signed by the 1st applicant for the 2nd applicant, in which case the withdrawal application was made by the 1st applicant on behalf of the 2nd applicant. Second, it was signed by the 2nd applicant’s aunt for the 2nd applicant, in which case the aunt was forging the 1st applicant’s signature as if she were the 2nd applicant’s father.
47. If the first scenario is correct, the 2nd applicant’s case on her aunt issuing the Withdrawal Letter would then be untrue. If the second scenario is correct, then the Withdrawal Letter was a forgery and would not be a valid notice to withdraw the appeal.
48. Even in the first scenario, there is still this question of whether the 1st applicant could withdraw the appeal on behalf of the 2nd applicant. According to the 2nd applicant, she was then under her aunt’s guardianship because the 1st applicant was in prison. The 1st applicant had no dispute with this allegation. If the 1st applicant did not have guardianship over the 2nd applicant, it is doubtful whether he could withdraw the appeal on behalf of the 2nd applicant.
49. Moreover, the 2nd applicant was born on 20 July 2003 and hence she was 15 years old at the time when the Withdrawal Letter was issued on 12 November 2018. As a minor, it was unlikely that the 2nd applicant could make the decision to withdraw her appeal on her own, and she might need legal representation to withdraw the appeal before the Board.
50. In Fabio Arlyn Timogan and Others v Evan Ruth, Esq and Another [2020] HKCA 971, the Court of Appeal held that:-
“48. … For our purposes, we would examine the matter by reference to procedural fairness. Viewed in that light, the appointment of a litigation friend (or, less formally in the setting of a Board hearing, treating the parent as representing a child in advancing a claim) may not be sufficient to meet the high standard of fairness in proceedings of this nature.
49. When one is dealing with children claimants of tender age, serious consideration should be given to have a lawyer assigned by the Duty Lawyer Scheme to represent the children in the Board hearing notwithstanding the rejection of the claims by the Director. …”
51. Thus, it could be arguable that without any legal representation for the 2nd applicant, simply accepting the withdrawal made by her parent (ie the 1st applicant) or her guardian (ie her aunt) on her behalf may not be sufficient to meet the high standard of fairness.
52. Furthermore, in the Withdrawal Decision, although it was stated that “the Board” gave the directions that the 2nd applicant’s appeal/petition was withdrawn and the Director’s 2nd Decision was confirmed, “the Board” was used to describe “the Non-refoulement Claims Petition Office”. The Withdrawal Decision was also signed by a Ms Natalie Man “for Non-refoulement Claims Petition Office”. It is therefore not clear whether the Withdrawal Decision was indeed made by a Board Member.
53. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself. Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the 2nd applicant’s petition or to give the said directions in the Withdrawal Decision.
54. It is therefore arguable that the Non-refoulement Claims Petition Office was ultra vires in making the Withdrawal Decision.
55. This court noted that the 2nd applicant’s application for leave to apply for judicial review in respect of the Withdrawal Decision was made more than one year after the Withdrawal Decision was made. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the 2nd applicant had to make the Leave Application within 3 months when the Withdrawal Decision was made. Thus, the delay was substantial and no explanation was provided for the delay.
56. However, in view of the above discussion, it seems that there could be some merits of the intended judicial review in respect of the 2nd applicant’s case. Who signed the Withdrawal Letter is a question of fact that requires further evidence to confirm. Whether the one signing the Withdrawal Letter had the legal capacity to represent the 2nd applicant is a mixed question of law and fact. Whether the 2nd applicant should have legal representation in making the withdrawal application is a question of law. Whether the Withdrawal Decision was validly made by the Board is a mixed question of law and fact. All these questions are reasonably arguable and have realistic prospects of success in favour of the 2nd applicant.
57. In view of the merits of the 2nd applicant’s intended judicial review, this court is prepared to extend the time for the 2nd applicant to make the Leave Application. The time is therefore extended to 4 May 2020 when the 2nd applicant was permitted to join in the Leave Application as an applicant.
58. As the 2nd applicant’s case is reasonably arguable and has realistic prospects of success, leave is granted for her to apply for judicial review in respect of the Withdrawal Decision.
Conclusion
59. By reasons aforesaid, the Leave Application in respect of the 1st applicant’s application is dismissed. The time for the 2nd applicant to make the Leave Application is extended as aforesaid, and leave is granted to the 2nd applicant to apply for judicial review in respect of the Withdrawal Decision.
Dated the 26th day of August 2025
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( Irene LEE )
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/Handed to the applicant/the applicant’s solicitors
on: 26 August 2025
Applicant’s ref. no:
Nil
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Sent/Handed 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: 26 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
BOR 730/17/6/47/V20
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 106/16
(formerly RBCZ 13865/15)
QA T/C 107/16
(formerly RBCZ 13866/15)
RBCZ 9000547/16
(VU Ngoc Lam)
RBCZ 9000548/16
(VU Anh Nguyet)
QA T/C 106/16 (father),
QA T/C 107/16 (minor) (Formerly RBCZ/13865/15 (father), RBC/13866/15 (minor))
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[2] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[4] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
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