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BETWEEN
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Bui Thi Hoa |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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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”.
2. The applicant’s application for extension of time to file the Leave Application be refused.
3. 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 10 October 2025 and filed on 14 October 2025, the 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 14 November 2024 (“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/2025/HCAL002298_2025_files/the_Board's_Decision.pdf
2. The Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed her appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 September 2024 (“the Director’s Decision”) and confirmed the same.
Amendment
3. In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondent, when only the Board should be so named.
4. The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be tortured or even killed by her creditor named Nguyen Thi Lien from whom she borrowed 600 million Vietnamese Dong and could not repay.
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 14 October 2025, which was 11 months after the Board’s Decision (made on 14 November 2024). The applicant was hence late for 8 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 stated in paragraph 9 of the document annexed to her Form 86 with the title “Grounds on which Relief is Sought” that the application was not made within 3 months of the decision being challenged and extension of time was required under Order 53, rule 4(1). This court will treat that the applicant was making an application for extension of time to file the Leave Application. However, the applicant failed to give any reason for her delay in the said document.
12. At the oral hearing before this court on 4 December 2025, when this court asked the applicant for the reason of her delay, she merely said she was not aware of the court’s procedure and needed to reach out to friends for advice. When asked why she needed almost a year to ask her friends, the applicant said that she was detained and could only get her passport back from the Immigration Department on 1 October 2025.
13. The delay of 8 months is very substantial and the explanation given by the applicant is not satisfactory. Ignorance of the court’s procedures is generally not an excuse and the reason why it took her so long to ask her friends remained unexplained. Further, even if the applicant was in need of getting her passport back for filing the Leave Application, there was no reason why she could not make the request to the Immigration Department and get it back earlier than 1 October 2025.
14. More importantly, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application. The Leave Application can be dismissed on the ground of being made out of time alone.
15. However, for the sake of completeness, this court will still examine the merits of the Leave Application.
Oral hearing
16. The applicant requested for an oral hearing of the Leave Application and her case was heard on 4 December 2025.
17. At the hearing, the applicant confirmed that she would rely on the grounds mentioned in the document annexed to her Form 86 with the title “Grounds on which Relief is Sought”. When this court asked the applicant to elaborate on the grounds, she only repeated the background facts of her claim and asked this court to grant her stay in Hong Kong.
Grounds for judicial review
18. 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).
19. The grounds that were asserted in the document annexed to her Form 86 with the title “Grounds on which Relief is Sought” were only general assertions without any particulars related to the applicant’s own case. Many other non-refoulement claimants had used similar contents like those in the said document as their grounds in seeking for leave to have judicial review in respect of the Board’s decisions. They are just being used like a template for them.
20. As aforesaid, the applicant failed to elaborate on the grounds at the oral hearing before this court. Nevertheless, as the applicant is relying on the grounds in the said document, this court will still deal with the grounds as discussed below.
Discussion
21. First of all, some of the grounds stated in the said documents were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.
22. The grounds that were advanced against the Board’s Decision were all very general and without any particulars related to the applicant’s own case. They only contained “key words” such as the Board was procedurally unfair, the Board’s Decision was not reasonable and fair, and the Board ought to allow her appeal/petition, etc.
23. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
24. Thus, none of the grounds that were contained in the said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.
25. 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).
26. 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 valid ground being advanced by the applicant for the intended judicial review.
27. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 12 November 2024. The applicant was present and was thus given the chance to present her case to the Board in person. The Board found that the applicant was not a credible witness. She was inconsistent in her evidence and was evasive. Her claim was premised on unreliable and incredible information which the Board did not accept.
28. Despite the above conclusion, the Board did give detailed reasons as to why it would still dismiss the applicant’s appeal/petition even if the applicant’s claims in her non-refoulement claim form were accepted. In short, the Board found the applicant’s fear of returning to Vietnam arose only from her inability to repay a private loan. The injuries that the applicant sustained as a result from the only attack did not reach a minimum level of severity. The acts imposed on the applicant were not for a reason under the definition of torture under section 37U of the Immigration Ordinance, nor for any of the Convention reasons. There was no evidence to show that the creditor had a real intention to seriously harm or kill the applicant. Her family remained unharmed after she relocated to another place merely 50 km away from her home since May 2022, and the applicant was not located by the creditor.
29. Moreover, the Board found that the applicant had many options for relocation in Vietnam and it would be very difficult for the creditor to locate her upon her return. Despite the limited education she received, the applicant, being able-bodied with over 20 years of work experience both in running her own business and as an employee, could reasonably relocate to other places in Vietnam to avoid her alleged fear of harm and earn a living without undue hardship.
30. Thus, the danger that the applicant allegedly would face upon her refoulement to Vietnam had been duly assessed but rejected by the Board.
31. The assessment of evidence and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant intends to challenge the finding of facts by the Board, it is not permissible in a judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
32. 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.
33. 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
34. For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused, and the Leave Application is dismissed for being made out of time and also for lack of merits.
Dated the 7th day of January 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 his 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: 7 January 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:
7 January 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 24619
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1973/24
(formerly RBCZ/5001601/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1