NGUYEN VAN THAO, acting as the next friend of NGUYEN LAN ANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 15/2026

[2026] HKCFI 3444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 15 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.  Leave to apply for Judicial Review be refused.

2.  Non-compliance with Order 80, rule 2 of the Rules of the High Court 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 father (“the father”) acting as the next friend of the applicant, his daughter, born on 19 July 2008, aged 17 (“the daughter”). They are illegal immigrants. The father’s application for leave to apply for judicial review of the Board’s decision was dismissed in HCAL 1587 of 2025. This case should be considered together with HCAL 1587 of 2025 as the daughter’s claim relies on the facts of the father’s claim.

2.  The applicant applies for leave to apply for judicial review of the Decision dated 4 December 2025 of the Torture Claims Appeal Board (“the Board’s Decision”).

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

4.  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 named acts as the next friend of the applicant.

The applicant

5.  The applicant is a national of Vietnam.

6.  The applicant lodged a non-refoulement claim, on the basis that, if refouled, she will be harmed or killed by the father’s creditor.

7.  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/HCAL000015_2026_files/the_Board's_Decision.pdf.

The Director’s Decision

8.  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”).

9.  By way of Notice of Decision dated 28 August 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 10 November 2025, the Board conducted an oral hearing for the appeal. The father had given evidence and answered the Board’s questions.

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

(1)  The father’s claim was rejected.

(2)  The creditor did not deliver any threat or ill-treatment to the applicant. [52]

(3)  The creditor had no association with any government officials or organization in Vietnam. [53]

(4)  Internal relocation is viable. [72]

(5)  There are protections specifically tailored for children and women, such that their rights and welfare are being guarded. [85]

(6)  State protection will be available. [93] & [97]

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

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicants filed Form 86 on 5 January 2026 for leave to apply for judicial review of the Board’s Decision.

14.  In support of the application, the father has raised the grounds below in support of the applicant’s application.

(1)  The Board’s Decision is wrong as it did not consider her right to life.

(2)  The Board had relied too much on the country of origin information without considering her personal background or experience.

(3)  The Board was unfair for requesting the father to answer questions that he was not in a position to offer any response.

DISCUSSION

15.  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).

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

17.  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 Board’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.

18.  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.”

19.  Those reasons under paragraph 14 are general assertions without any evidence in support. They do not constitute valid reasons to challenge the Board’s Decision.

20.  I am satisfied that the Board had applied advanced standards of fairness in its assessment of the application and there was no child specific issue that was not brought to the Board’s consideration because of lack of legal representation for the applicant. I further bear in mind that the applicant will be of age by 24 July this year.

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

DISPOSITION

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

23.  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