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HCAL 3590/2019
[2026] HKCFI 935
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3590 OF 2019
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BETWEEN
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Vu Thanh Thuy |
1st Applicant |
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Trinh Ngoc Han
by Vu Thanh Thuy, her next friend
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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 2nd applicant’s name be amended to “Trinh Ngoc Han by Vu Thanh Thuy, her next friend”, “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 18 November 2019”.
2. The applicants’ application for leave to apply for judicial review be dismissed.
Observations for the applicants:
The Leave Application
1. By way of Form 86 dated and filed on 3 December 2019, the applicants applied for leave to apply for judicial review in respect of a decision dated 18 November 2019 without identifying the decision-maker.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 18 November 2019 (“the Board’s Decision”) regarding the applicants’ appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 October 2017 (“the Director’s Decision”).
3. At the oral hearing before this court on 22 January 2026, the 1st applicant confirmed that the Board’s Decision was 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/2019/HCAL003590_2019_files/the_Board's_Decision.pdf
4. The Board decided that the applicants’ appeal/petition against the Director’s Decision failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicants’ non-refoulement claims.
Amendments
5. The 2nd applicant is a minor and represented by her mother, ie the 1st applicant, as her next friend in the Leave Application.
6. Thus, the 2nd applicant’s name in Form 86 should be amended to “Trinh Ngoc Han by Vu Thanh Thuy, her next friend”.
7. The applicants did not name any putative respondent but named “TORTURE CLAiMS APPEAL BOARD NON REFOULEMENT CLAiMS PETiTiON OFFiCE” as the putative interested party in Form 86.
8. In fact, the Board should be named as the putative respondent and the Director should be named as the putative interested party.
9. 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 party at all.
10. As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.
11. Thus, on this court’s own motion, the 2nd applicant’s name is amended as aforesaid, “Torture Claims Appeal Board” is added as the putative respondent, the name of the putative interested party is amended to “Director of Immigration”, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 18 November 2019”.
The applicants’ case
12. It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
13. In sum, the applicants claimed for non-refoulement protection because they might be harmed or killed by the creditor of the 1st applicant’s husband if they were to be refouled to Vietnam. The 1st applicant claimed that her husband had borrowed money from a creditor but she did not have any details about the loan because she did not ask her husband about it. She only knew that the creditor had come to their home once to ask her husband to repay the loan. Her husband later fled to Hong Kong to avoid the creditor after he brought the 1st applicant and their elder daughter to his parents’ home. The 1st applicant received a call from her husband in 2015 when he was already in Hong Kong. Her husband told her that the creditor might ask her to repay the loan for him and hence it was unsafe for her to stay in Vietnam. She then fled to Hong Kong as advised by her husband. The 2nd applicant is their younger daughter born in Hong Kong.
Legal representation for the 2nd applicant
14. As the 2nd applicant is a minor, this court, by its letter dated 24 June 2025, informed the 1st applicant about the requirement under Order 80, rule 2 of the Rules of the High Court that she must seek legal representation for the 2nd applicant so that the 2nd applicant’s specific interest may be fairly put before this court.
15. Both applicants then applied for legal aid on 29 August 2025, but the Director of Legal Aid refused their applications on 24 October 2025.
16. At the oral hearing before this court on 22 January 2026, the 1st applicant confirmed that she would not engage a private lawyer to represent the 2nd applicant.
17. In view of the underlying objectives as stated in Order 1A, rule 1 of the Rules of the High Court, and the need to ensure that a case is to be dealt with expeditiously, this court was of the opinion that it should proceed to hear and determine the Leave Application despite the lack of legal representation for the 2nd applicant. This Court therefore treated the lack of legal representation for the 2nd applicant as a mere irregularity and waived the same.
Oral hearing
18. At the oral hearing on 22 January 2026, when this court asked the applicants for the grounds of the intended judicial review, the 1st applicant merely said that she could not go back to Vietnam yet because she owed a debt, but she could not tell what was wrong with the Board’s Decision.
19. This court also asked the 1st applicant if she had anything specific to the 2nd applicant’s case to say, but the 1st applicant had nothing to say.
Grounds for judicial review
20. 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).
21. The applicants did not advance any grounds for their intended judicial review in Form 86, nor in the 1st applicant’s affirmation dated 3 December 2019. The 1st applicant only mentioned in her affirmation that she could not go back to Vietnam as she had not paid the debt which she had borrowed and her life would be insecure if she was to go back.
22. What the 1st applicant said at the oral hearing was basically the same and did not amount to any valid ground for judicial review at all. As aforesaid, she could not tell what was wrong with the Board’s Decision and did not advance any ground for the 2nd applicant either.
Discussion
23. First of all, the applicants’ risk of returning to Vietnam had been assessed but rejected by the Board. If the applicants intend to challenge the Board’s finding of facts, it is not permissible in a judicial review.
24. 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).
25. 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 applicants for the intended judicial review.
26. In assessing the appeal by the applicants, the Board held an oral hearing on 21 March 2019. The 1st applicant acted in person and she also testified on behalf of the 2nd applicant before the Board.
27. As can be seen from the Board’s Decision, the Board had analyzed the applicants’ individual cases with due care and provided detailed reasoning for rejecting the applicants’ claim for non-refoulement protection on all the applicable grounds under the USM.
28. The applicants did not provide any documentary evidence in support of their claims. In fact, the 1st applicant could not even provide details of the loan taken out by her husband because her husband seldom talked about his private matters. The Board found this explanation to be implausible. Her husband was himself a non-refoulement claimant. Both of them should be aware of their responsibility as a non-refoulement claimant to provide evidence in support of their claims. The applicants’ case was heard almost 2 years after they filed their appeal/petition to the Board. The 1st applicant should have ample time and opportunity to ask for details of the loan and to gather evidence in support of their claims.
29. The Board thus found the 1st applicant to be an unreliable witness. The Board rejected the 1st applicant’s claim that her husband had taken out a loan in Vietnam, and hence considered the 1st applicant’s claim that she left Vietnam to avoid her husband’s creditor to be incredible.
30. Despite its finding as to the credibility of the applicants’ claims, the Board did go on to assess their risks on the assumption that their claims were accepted. However, the Board still found both applicants failed to substantiate a case for non-refoulement protection.
31. The Board found that the applicants’ fear only arose from the inability of the 1st applicant’s husband to repay a loan, which was a private matter. There was no evidence of state acquiescence. Based on the evidence, the 1st applicant had never been harmed by her husband’s creditor before she left Vietnam. She had not even seen the creditor after she moved to stay with her parents-in-law. The Board did not consider the ill-treatment she received amount to torture or reach a minimum level of severity, and her fear of ill-treatment did not fall within the definition of persecution.
32. As to the assessment of the 2nd applicant’s risks upon refoulement, the Board noted that the 2nd applicant was born in Hong Kong after the 1st applicant had moved here to stay with her husband. The 2nd applicant had never been to Vietnam since birth, and there was no evidence to show that the creditor was even aware of her existence. The Board considered that the chance of the 2nd applicant being at risk from her father’s creditor was low.
33. Moreover, the Board found from country of origin information (“COI”) that although corruption and inefficiency was common in all levels of the police force, the Vietnamese government had undergone reforms to combat police corruption and improve their efficiency. The 1st applicant had in fact never sought assistance from the police. The Board found no evidence to show that the state was unwilling or unable to offer protection to them should the applicants need it.
34. The Board also found that there should be viable options for the applicants to settle at an alternative place in Vietnam, as the threat was localised. There was no evidence to show that the creditor of the 1st applicant’s husband could locate the applicants if they moved to stay in another place outside their home locality. The Board rejected the 1st applicant’s claim that she could not relocate because she did not know anyone in other places in Vietnam and she could not find employment due to her poor vision. The Board considered that the 1st applicant could build up a new social network and correct her vision. The Board considered that the 1st applicant, being an able-bodied mature woman, could relocate with the 2nd applicant to another place such as Ho Chi Minh City without undue hardship to avoid her husband’s creditor upon her return to Vietnam.
35. The finding of facts, including the assessment of evidence, COI and risks 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.
36. 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.
37. 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 had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicants have failed to establish such a claim and hence leave must be refused.
Conclusion
38. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16th day of February 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: 16 February 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: 16 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM8984/17/10/314/V1769
USM8985/17/10/315/V1770
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 474/17
(Formerly RBCZ 11301/15)
QA T/C 2166/17
(Formerly RBCZ 11224/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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