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HCAL 963/2023
[2026] HKCFI 932
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 963 OF 2023
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BETWEEN
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Doan Thi Tim |
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”, and “Director of Immigration” be added as the putative interested party.
2. The applicant’s applications to withdraw the Leave Application, to re-open the Leave Application and for an extension of time to file an appeal with the Court of Appeal 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 and filed on 19 June 2023, 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 13 June 2023 (“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/2023/HCAL000963_2023_files/the_Board's_Decision.pdf
2. The Board decided that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 3 December 2021 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection, and confirmed the same.
Amendments
3. The applicant named the Board / Non-refoulement Claims Petition Office and the Director as the putative respondents and did not name any putative interested party in Form 86.
4. In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
5. 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.
6. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.
The applicant’s case
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to Vietnam, she would be harmed or killed by her creditor due to her inability to repay a loan of 500 million Vietnamese Dong (“VND”).
Withdrawal and re-opening of the Leave Application
9. On 15 September 2025, this court received a letter dated 15 September 2023 from the applicant informing this court that she would like to withdraw the Leave Application as it was safe for her to return to her country.
10. The applicant also filed an ex parte application by way of her affirmation dated 15 September 2025 to withdraw the Leave Application on the ground that it was safe for her to return to her country.
11. However, by another affirmation dated 6 November 2025, the applicant applied to re-open her case and for an extended time to file an appeal with the Court of Appeal, as she was still in danger of being killed or harmed by her creditor if repatriated.
12. Since this court had not dealt with the applicant’s withdrawal application, it was not necessary for the applicant to apply for re-opening of the Leave Application. There was also no need to apply for an extension of time to file an appeal to the Court of Appeal, as the Leave Application had not been dealt with.
13. It is clear that the applicant no longer wishes to proceed with the withdrawal application and hence it should be refused.
14. It is also clear that the applications for re-opening of the Leave Application and extension of time to appeal to the Court of Appeal were both unnecessary and should be refused as well.
15. Thus, this court orders that the applicant’s applications to withdraw the Leave Application, to re-open the Leave Application and for an extension of time to file an appeal with the Court of Appeal be refused.
Oral hearing
16. The applicant requested for an oral hearing of the Leave Application and her case was heard on 22 January 2026.
17. When this court asked the applicant to elaborate on the grounds of her intended judicial review, which were stated in a document annexed to her Form 86 with the title “Grounds on which relief is sought”, she merely repeated her allegation that her life was in danger as she could not repay her debt.
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 contents of the said document with the title “Grounds on which relief is sought” were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the said grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
20. As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing. She only mentioned that her life was in danger as she could not repay her debt, which was not a ground for judicial review.
Discussion
21. As mentioned, all the grounds contained in the document with the title “Grounds on which relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.
22. There are a total of 6 paragraphs under the heading “Grounds” in the applicant’s said document. Paragraphs 2 and 5 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraphs 1, 3, 4 and 6 of the grounds are relevant to the Leave Application.
23. In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either.
24. In any event, the Board did assess the applicant’s risk of right to life but concluded that the facts of her case clearly did not give rise to any risk of violation of right to life.
25. In paragraph 3, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take her personal background and experience into account. However, the applicant did not state which aspects of her personal background and experience had not been taken into account by the Board.
26. In paragraph 4 of the grounds, the applicant alleged that the adjudicator was procedurally improper and unfair when assessing whether to accept or not to accept explanations provided by her, and unreasonably required her to respond to questions. This accusation lacks any particulars in support. The applicant did not state which explanations she provided were not accepted by the Board and which questions she was unreasonably required to answer.
27. There was in fact nothing wrong for the Board to question the applicant extensively to try to understand her claims better and to assess her credibility and her accounts of the events leading to her claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.
28. In paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.
29. The Board had in fact provided a detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all applicable grounds under the USM to claim non-refoulement protection. The Board’s rejection of her non-refoulement claim was a decision made after due consideration of the law and the evidence placed before it. If the applicant intends to challenge the finding of facts by the Board, it is not permissible in a judicial review.
30. 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”.
31. Thus, none of the grounds that were contained in the applicant’s 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, or are completely unfounded.
32. 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).
33. 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.
34. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 2 June 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.
35. As laid out in paragraph 29 of the Board’s Decision, the Board found multiple and significant implausibilities and inconsistencies in the applicant’s story. The applicant was also evasive in responding to the Board’s questions. The Board did not find the applicant to be a credible witness. The Board did not accept that the applicant had been threatened as alleged, and even if the threats were imposed, the Board found that they were only uttered at the spur of moment. The creditor did not have a real intention to harm the applicant. Hence, the applicant’s claims were rejected.
36. Despite the finding of the applicant’s credibility as summarised above, the Board did go on to assess the applicant’s case as if her allegations were accepted, but the Board found that the applicant still could not succeed in her claim for non-refoulement protection.
37. The Board found that the applicant’s fear only arose from her inability to repay a loan, which was a private matter. There was no evidence to support that the injuries the applicant sustained could amount to torture or attain the level of minimum severity. Even on the applicant’s own evidence, she was only slapped on one occasion when the creditor came to ask her to repay the loan with men armed with knives among other weapons. The moneylender could have seriously harmed or killed her if the creditor had a real intention to do so. The moneylender did not harm her family when they came to ask for the applicant’s whereabouts. The moneylender was not a state actor, and there was no element of state acquiescence in the alleged ill-treatment of the applicant. Her fear of ill-treatment did not fall within any of the Convention categories.
38. Moreover, the Board found from COI that although there were materials that indicated corruption and inefficiency was common in the Vietnamese police force, the Vietnamese government had undergone reforms to combat police corruption and improve their efficiency. The applicant’s assertion that the state would not protect her was her own speculation. In fact, she had never sought assistance from the police or other authorities when she was in Vietnam. The Board found that there was sufficient state protection in Vietnam.
39. The Board also found that there was internal relocation alternative for the applicant. The applicant’s assertion that the moneylender was powerful and could locate her anywhere was just her own speculation or mere hearsay. After taking into account of all the relevant matters, the Board found that it would not be unreasonable or unduly harsh for the applicant, being an able-bodied woman with years of work experience to live elsewhere in Vietnam other than her home area to reduce or even negate any risk of harm.
40. 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.
41. The finding of facts, including the 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.
42. 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.
43. 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
44. 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 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:
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.:
USM 19438
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1901/21
(Formerly RBCZ 387/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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