TRAN THI BICH v. DIRECTOR OF IMMIGRATION

HCAL 2118/2025

[2026] HKCFI 2777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2118 OF 2025

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 oral submissions by the applicant or counsel in open court;

1.  The applicant’s applications to withdraw the Leave Application and to re-open the Leave Application be refused.

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 19 September 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 4 July 2025 (“the Director’s Decision”).

Procedural history of the applicant’s non-refoulement claim

2.  The applicant made a non-refoulement claim by way of written signification on 17 February 2025 to the Director. Her claim was assessed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).

3.  The Director found that the applicant’s claim was purely based on personal financial disputes which arose from her inability to repay her loans. The disputes and any ill-treatment inflicted upon her did not involve state acquiescence and was not for any Convention reasons. The ill-treatment arising from her disputes with her creditors did not attain the level of severity required for international protection. Moreover, the Director found that reasonable state protection was available to the applicant, and internal relocation was a viable option to her. Hence, by way of the Director’s Decision, the Director rejected her non-refoulement claim on all the applicable grounds under the USM.

4.  The applicant filed a Notice of Appeal/Petition against the Director’s Decision to the Torture Claims Appeal Board (“the Board”) on 21 July 2025. However, the applicant filed a Notice of Withdrawal to the Board on 11 August 2025 to withdraw the appeal/petition.

5.  In response to the applicant’s Notice of Withdrawal, the Board issued a letter dated 12 August 2025 to the applicant to inform her that an appeal/petition against the Director’s Decision was withdrawn once a notice to withdraw the appeal/petition was received by the Board, and since the applicant’s appeal/petition had been withdrawn by her Notice of Withdrawal, no further action would be taken by the Board in respect of her appeal/petition. The Board further informed the applicant that the Director’s Decision remained, her non-refoulement claim was finally determined, and no further notice of appeal/petition was allowed to be filed in relation to the Director’s Decision.

6.  The applicant then filed the Leave Application on 19 September 2025, seeking to challenge the Director’s Decision, but not the Board’s decision in its letter dated 12 August 2025.

The applicant’s case

7.  The applicant claimed for non-refoulement protection because she feared that if refouled to Vietnam, she would be harmed or killed by two creditors, from whom she had borrowed money, due to her inability to repay the loans.

8.  The applicant claimed that the creditors had, towards the end of 2022, threatened to harm and kill her if she did not repay the loans. In fear of being harmed, the applicant left home and stayed in Hanoi from 2022 to 2025. The applicant claimed that the creditors had called her many times during those years, but she did not answer their calls. The applicant also claimed that the creditors had visited her family frequently to ask for her whereabouts and issued threats that they would kill the applicant if they found her.

Withdrawal and re-opening of the Leave Application

9.  By way of a letter dated 26 February 2026, the Director informed this court that the applicant had written a letter dated 24 February 2026 to cancel her Leave Application. In the applicant’s said letter, she stated that her problems in Vietnam had been resolved and it was safe for her to return to Vietnam.

10.  However, by another letter dated 21 March 2026, which was addressed both to the Immigration Department and this court, the applicant applied to withdraw her application for repatriation and to continue the proceedings of the Leave Application, as she was still under threat of being killed by her creditors if repatriated.

11.  Since this court has not dealt with the applicant’s withdrawal application, it was not necessary for the applicant to apply for re-opening of the Leave Application.

12.  It is clear that the applicant no longer wishes to proceed with the withdrawal application and hence it should be refused.

13.  It is also clear that the application for re-opening of the Leave Application is unnecessary and should be refused as well.

14.  Thus, this court orders that the applicant’s applications to withdraw the Leave Application and to re-open the Leave Application be refused. This court will proceed to deal with the Leave Application as discussed below.

Disposal on paper

15.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

16.  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).

17.  The applicant annexed a document to her Form 86 with the title “Grounds on which relief is sought”.

18.  Except for the first paragraph under the sub-heading “Grounds” in the said document, in which the applicant stated that she should be given another chance to make a subsequent claim, the remaining contents of the said document 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 Director’s or 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. The applicant is not an exception.

Discussion

19.  First of all, the applicant’s assertion that she should be given another chance to make a subsequent claim is totally irrelevant in the Leave Application.

20.  In the present Leave Application, the applicant is only challenging the Director’s Decision, which rejected her initial and only non-refoulement claim made on 17 February 2025. The Director’s Decision was not about any subsequent claim or an intended one made by the applicant.

21.  Further, the processing of subsequent claim is governed by section 37ZP of the Immigration Ordinance, Cap 115 (“the Ordinance”). Whether a claimant may make a subsequent claim should be decided by the Director in accordance with the provisions of the said section, and on appeal, by the Board. Thus, it is not for this court to take on the role of the primary decision-makers to decide whether the applicant should be allowed to make a subsequent claim. This ground is totally not arguable.

22.  As mentioned, all the remaining grounds contained in the document with the title “Grounds on which relief is sought” are very general.

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, the general assertions that were contained in the applicant’s said document cannot help her at all.

25.  More importantly, it was confirmed by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549 that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the Board is pursued by a claimant as the decision of the Director will be superseded by the decision of the Board.

26.  Although the applicant’s substantive appeal/petition had not been re-assessed by the Board, the applicant did indeed invoke the established statutory procedures of appeal from the Director to the Board. By withdrawing his appeal/petition, the applicant in fact gave up her right to have the Board re-assessing her non-refoulement claim.

27.  Pursuant to section 37ZTA(2) of the Ordinance, an appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Board and no further notice of appeal may be filed in relation to the decision.

28.  As held by the Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, if the withdrawal or abandonment of the appeal is a valid one, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal.

29.  Thus, the applicant’s claim for non-refoulement protection had been finally determined. The fact that the applicant had withdrawn her appeal/petition against the Director’s Decision to the Board does not mean that this court can or should take on the role of the Board to re-assess the applicant’s non-refoulement claim.

30.  As held in Nupur Mst v Director of Immigration [2018] HKCA 524, 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.

31.  Thus, there is plainly no merits in the Leave Application when the applicant intends to challenge the Director’s Decision simply because she had withdrawn her appeal/petition to the Board.

32.  For the sake of completeness, this court will examine and scrutinize the Director’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.

33.  As can be seen in the Director’s Decision, the Director had duly considered all aspects of the applicant’s claim.

34.  The Director found that the applicant’s fear only arose from her inability to repay a loan, which was a private matter. The creditors had never inflicted any physical harm on the applicant or her family. There was no evidence that the creditors had a real intention to seriously harm or kill the applicant. The Director thus assessed that the projected harm by the creditors did not amount to torture or attain the level of minimum severity required for international protection. The Director also found that both the applicant’s creditors were not state actors, 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.

35.  Moreover, the Director found from extensive, fully-referenced country of origin information (“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 to curb down illegal loan shark activities. The applicant’s assertion that the state would not protect her was her own speculation. The applicant could have sought assistance from other police stations or other authorities when the police in her area did not take action in respect of her report when she was in Vietnam. The Director found that there was sufficient state protection in Vietnam.

36.  The Director also found that there was internal relocation alternative for the applicant. The applicant’s assertion that her creditors were powerful and could locate her anywhere was just her own speculation or mere hearsay. After taking into account of all the relevant matters, the Director found that it would not be unreasonable or unduly harsh for the applicant, being an able-bodied woman with 9 years of education and 5 years of work experience, to live elsewhere in Vietnam other than her home area to reduce or negate any risk of harm.

37.  Thus, the Director concluded that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the USM.

38.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Director. The Director was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Director reached his conclusion.

39.  Having rigorously examined the Director’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Director 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 Director 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 Director’s Decision. The Director’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Director to reach his decision.

40.  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

41.  For reasons aforesaid, the Leave Application is dismissed.

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