DINH THI TIEP v. TORTURE CLAIMS APPEAL BOARD

HCAL 2149/2020

[2025] HKCFI 5391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2149 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 14 March 2019”.

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 27 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of “The Notice of Decision 12 May 2017 from Torture Claims Appeal Board”.

2.  However, the Torture Claims Appeal Board (“the Board”) made its decision dated 14 March 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 May 2017 (“the Director’s Decision”). It is clear that the date written in Form 86 is the date of the Director’s Decision. As the applicant stated that the decision was from the Board and the Director’s Decision was superseded by the Board’s Decision (see Re Moshsin Ali [2018] HKCA 549), this court will treat the Board’s Decision as the subject matter of the Leave Application.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/2020/HCAL002149_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant failed to establish a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same.

Amendments

4.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the putative respondent, when only the Board should be the putative respondent.

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”.

7.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Hence, on this court’s own motion, it is so amended.

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.  Form 86 was filed on 27 October 2020, which was more than 19 months after the Board’s Decision (made on 14 March 2019). The applicant was hence late for more than 16 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.

12.  The delay of more than 16 months is substantial, and there is no justification for the delay when no explanation was given. Moreover, 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, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

13.  However, for the sake of completeness, this court will still examine the merits of the Leave Application in respect of the Board’s Decision.

The applicant’s case

14.  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.

15.  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 creditor named Madam Hoa from whom she borrowed a sum of 200 million Vietnamese Dong as she was unable to repay the debt.

Oral hearing

16.  The applicant requested for an oral hearing of the Leave Application. However, she was absent at the hearing on 11 September 2025.

17.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

18.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

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 the intended judicial review in Form 86.

21.  In her supporting affirmation dated 27 October 2020, the applicant stated that “the court” (which this court takes as referring to the Board) did not consider three matters namely:-

(1)  She gave birth to a son in Hong Kong on 22 November 2015;

(2)  The mental problem she would face after her return to Vietnam; and

(3)  Her life and financial problem after her return to Vietnam.

22.  She elaborated on those grounds in a page of handwritten document annexed to the affirmation. She stated that she is the only person taking care of her son, who is at a young age. Her son is a permanent resident of Hong Kong and does not have any identity documents which will enable him to live and go to school in Vietnam. If she were refouled to Vietnam by herself, she would not be able to find anyone trustworthy to take care of her son in Hong Kong. She would hence miss her son very much in Vietnam and would be mentally stressed. Further, she did not have money to repay her creditor upon return, as she could not work in Hong Kong. Her creditor would endanger her life when she failed to repay the debt.

Discussion

23.  First of all, the fact that the applicant has a son born in Hong Kong is not a ground for non-refoulement protection nor judicial review.

24.  This court notes from paragraph 4 of the Board’s Decision that the applicant had written a letter in English asking the Hong Kong government to allow her to stay longer here, and mentioned that her young son as well as herself would face threats if repatriated to Vietnam. However, as confirmed by the applicant in her affirmation which came with a copy of the Hong Kong identity card of her son, her son is a permanent resident of Hong Kong. Hence, her son does not face refoulement. The problem she might face with regard to the possible separation from her son was not raised before the Board.

25.  As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

26.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

27.  In any event, the applicant’s unwillingness to return to her home country due to her desire to stay and take care of her son who is a Hong Kong resident is not a ground for non-refoulement. As held by the Court of Final Appeal in Comilang & Ors v the Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong.

28.  Thus, the ground that she would be mentally stressed when leaving her son in Hong Kong cannot assist the applicant in the Leave Application.

29.  As to her complaint that the Board did not consider the danger she would face with regard to her financial problem when she was returned to Vietnam, her risks from her creditor upon refoulement had been duly considered but rejected by the Board. If the applicant is seeking to challenge the finding of facts by the Board, it is not permissible in a judicial review.

30.  Thus, this court finds that the applicant has failed to advance any valid ground for the intended judicial review.

31.  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, supra).

32.  Thus, despite the fact that the applicant had not advanced any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

33.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 11 February 2019 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.

34.  As can be seen from the Board’s Decision, the Board gave very detailed analysis and reasoning in rejecting the applicant’s claims. The Board found that the applicant’s dispute with her creditor was only a private loan dispute between them and the treatment she suffered did not fall within the meaning of torture under section 37U of the Immigration Ordinance. The harm or threat of harm were not instigated or authorized by the state. The acts that were inflicted upon the applicant were not for a Convention reason. The Board also found that the injuries the applicant suffered did not attain a minimum level of severity. Country of origin information (“COI”) showed that there was reasonable availability of state protection.

35.  As to internal relocation, the Board did not accept that the creditor was interested in locating the applicant all over Vietnam, especially when chasing money from an impoverished debtor was throwing good money away for bad, and killing a debtor would obviously not bring about repayment. There were many places in the country apart from the applicant’s home locality in northern Vietnam where the applicant, as an able-bodied young woman with work experience including operating her own business, could safely relocate to and live without undue hardship.

36.  Thus, the applicant’s risks upon refoulement had all been duly considered but rejected by the Board.

37.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

38.  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.

39.  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

40.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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