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HCAL 1015/2021
[2026] HKCFI 1256
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1015 OF 2021
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BETWEEN
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Tran Thi Hau |
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, “Torture Claims Appeal Board” be added as the putative respondent, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 21 May 2018”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 19 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 6 July 2021 without identifying the decision-maker.
2. The Torture Claims Appeal Board (“the Board”) only made one decision dated 21 May 2018 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 17 February 2017 (“the Director’s Decision”). The applicant confirmed at the oral hearing before this court on 5 February 2026 that the Board’s Decision should be the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001015_2021_files/the_Board's_Decision.pdf
3. The Board found that the applicant had failed to demonstrate that she was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the Director’ Decision and confirmed the same.
Amendments
4. The applicant did not name any putative respondent and failed to name the putative interested party properly in Form 86.
5. In fact, the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
6. As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.
7. Thus, this court makes an order on its own motion to add “Torture Claims Appeal Board” as the putative respondent, to amend the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 21 May 2018”.
Late application
8. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.
9. However, the applicant filed Form 86 on 19 July 2021, which was more than 37 months after the Board’s Decision (made on 21 May 2018). The applicant was hence late for more than 34 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.
10. As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
(i) the length of the delay;
(ii) the reason for the delay;
(iii) the merits of the intended application; and
(iv) any prejudice to the putative respondent and to public administration.
11. The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application. At the oral hearing before this court on 5 February 2026, the applicant only said that she did not settle her debt in Vietnam, she was scared of being sent back to Vietnam and so she made the application late.
12. The delay of more than 34 months is very substantial, and the explanation given by the applicant is clearly not satisfactory. Her debt problem had not been resolved was not an excuse for making the Leave Application late at all. More importantly, there is no merits in the intended judicial review as discussed below.
13. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.
14. However, for the sake of completeness, this court will still examine the merits of the Leave Application.
The applicant’s case
15. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
16. In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to Vietnam, she would be harmed or killed by a money lender called Tuan due to her inability to repay a loan of 200 million Vietnamese Dong to Tuan.
Oral hearing
17. The applicant requested for an oral hearing of the Leave Application and her case was heard on 5 February 2026.
18. When this court asked the applicant for the grounds of her intended judicial review, she merely said that she wanted to remain in Hong Kong because her debt problem in Vietnam was not solved and she could not repay the debt.
Grounds for judicial review
19. The applicant is 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).
20. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 19 July 2021.
21. What the applicant said at the oral hearing did not amount to any grounds for judicial review either.
Discussion
22. 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).
23. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any grounds being advanced by the applicant for the intended judicial review.
24. In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 2 May 2018. However, the applicant was absent at the hearing. The Board directed that a notice be given to the applicant to inform her of the Board’s intention to determine her appeal/petition in her absence, and that the applicant was required to submit to the Board a written explanation of her failure to attend the hearing, together with any documentary evidence to support her explanation, within 7 days after the notice was given to her. The applicant did not respond to the said notice. Thus, the Board proceeded to determine her appeal/petition based on all the available evidence before it.
25. The Board found the applicant’s evidence unsupported, unreliable, contradictory and inconsistent. Taking the evidence as a whole, the Board was not persuaded, even to the low standard required, that she had borrowed money from a money lender and that she had been threatened in her home area by a money lender, or otherwise ill-treated by any one, in Vietnam. The Board therefore rejected the applicant’s claim that she was indebted to a money lender called Tuan and that she had a genuine fear of the risk of harm if she were to return to Vietnam.
26. The Board also found that the applicant’s claimed threat from Tuan did not occasion her any harm or injury, and certainly did not amount to severe pain and suffering as contemplated in the definition of torture in Section 37U of the Immigration Ordinance, or reach the minimum level of severity.
27. The applicant’s feared harm arose solely from her inability to repay a loan, which was a private dispute. No state acquiescence was involved in her alleged dispute with the money lender. The applicant was not threatened or ill-treated for a Convention reason.
28. Moreover, the applicant’s claim that the police would not protect her was only her own speculation. Based on the country of origin information (“COI”), the Board found that reasonable state protection was available to the applicant if she needed to resort to police or state protection. Furthermore, the Board found that it would not be unduly harsh for the applicant, being young with a senior school education and with work experience as a farmer, a sewing worker and a stall owner selling garments, to relocate internally to a place of her choice in Vietnam.
29. Thus, the Board concluded that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the USM.
30. The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit 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 conclusion.
31. 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.
32. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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 applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
33. For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.
Dated the 3rd day of March 2026
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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:
3 March 2026
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: 3 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 6342/17/2/341/V1018
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3359/16
(Formerly RBCZ 13589/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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