NGUYEN THI THU HONG AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 2114/2020

[2026] HKCFI 1965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2114 OF 2020

Application for leave to apply for judicial review

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

Following:

1.   On this court’s own motion, the name of the 2^nd applicant be amended to “Tran Trung Kien (a minor) by Nguyen Thi Thu Hong, his next friend”, the name of the 3^rd applicant be amended to “Tran Bao An (a minor) by Nguyen Thi Thu Hong, his next friend”, and “Director of Immigration” be added as the putative interested party.

2.   The 1^st and 2^nd applicants’ application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 16 June 2020 be dismissed.

3.   The 3^rd applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 28 September 2022 be dismissed.

Observations for the applicants:

The Leave Application

1.  By way of Form 86 dated and filed on 22 October 2020, the 1^st applicant, on behalf of herself and the 2^nd applicant (the 1^st applicant’s elder son born in Hong Kong on 3 December 2017), 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 16 June 2020 (“the Board’s A1 & A2 Decision”).

2.  By way of her affirmation dated 7 October 2022, the 1^st applicant applied to add her younger son Tran Bao An, who was born in Hong Kong on 21 February 2019, as the 3^rd applicant in the Leave Application in respect of the Board’s decision made on 28 September 2022 (“the Board’s A3 Decision”).  Her application was granted by DHCJ Bruno Chan on 4 April 2023.

3.  Accordingly, the 1^st applicant filed an Amended Form 86 on 13 April 2023 to include Tran Bao An as the 3^rd applicant.  In the Amended Form 86, the applicants also stated that the Board’s A1 & A2 Decision and the Board’s A3 Decision were the decisions in respect of which relief is sought.

4.  Both the Board’s A1 & A2 Decision and the Board’s A3 Decision can be viewed in the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002114_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002114_2020_files/2nd_Board's_Decision.pdf

5.  In the Board’s A1 & A2 Decision, the Board decided that the 1^st and 2^nd applicants failed to establish their claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected and dismissed their appeal/petition against the decision of the Director of Immigration (“the Director”) dated 21 June 2018, which rejected the 1^st and 2^nd applicants’ claims for non-refoulement protection, and confirmed the same.

6.  In the Board’s A3 Decision, the Board found that the 3^rd applicant’s appeal/petition was not substantiated on any of the applicable grounds under the USM.  Hence, the Board confirmed the decision of the Director dated 30 June 2021, which rejected the 3^rd applicant’s claim for non-refoulement protection.

Amendments

7.  The 2^nd and 3^rd applicants are both minors and represented by their mother, ie the 1^st applicant, as their next friend.  Thus, the name of the 2^nd and 3^rd applicants should be stated in the Amended Form 86 as “Tran Trung Kien (a minor) by Nguyen Thi Thu Hong, his next friend”, and “Tran Bao An (a minor) by Nguyen Thi Thu Hong, his next friend” respectively, and their names are amended accordingly on this court’s own motion.

8.  The applicants did not name any putative interested party in the Amended Form 86, when the Director should be the putative interested party. 

9.  Thus, on this court’s own motion, “Director of Immigration” is added as the putative interested party.

Late application

10.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicants had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s decisions were made.

11.  However, the 1^st applicant filed the original Form 86 on behalf of herself and the 2^nd applicant on 22 October 2020, which was more than 4 months after the Board’s A1 & A2 Decision (made on 16 June 2020).  The 1^st and 2^nd applicants were hence late for more than 1 month in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the 1^st and 2^nd applicants to make the Leave Application.

12.  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.

13.  In her affirmation dated 22 October 2020, the 1^st applicant did not explicitly make any application for extension of time but provided an explanation for the delay in making the Leave Application.  She stated that the reason for the late application was that she had not received any letter from the Board until August 2020.

14.  At the oral hearing before this court on 5 February 2026, the 1^st applicant only said that she had no knowledge of how to proceed with the Leave Application but she had asked an acquaintance about it.

15.  The delay of more than 1 month is not insubstantial, and the explanations given by the 1^st applicant are clearly not satisfactory.  Even if she did receive the Board’s A1 & A2 Decision in August 2020, she could still have filed the Leave Application within time as the deadline for the application was 16 September 2020.  Further, ignorance of the court’s procedures is generally not an excuse.  More importantly, there is no merits in the intended judicial review as discussed below.

16.  Having considered the above criteria, this court is not prepared to grant any extension of time to the 1^st and 2^nd applicants to file the Leave Application, even if an application for extension of time was made.  The Leave Application in respect of them can therefore be dismissed on the ground of being made out of time alone.

17.  However, for the sake of completeness, this court will still examine the merits of the Leave Application in respect of the 1^st and 2^nd applicants together with the 3^rd applicant.

The applicants’ case

18.  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 A1 & A2 Decision and the Board’s A3 Decision, which can be viewed in the hyperlinks above.

19.  In sum, the 1^st applicant claimed for non-refoulement protection because if refouled to Vietnam, she feared being ill-treated or killed by a loan shark called Pham Van Tuan (“the Creditor”) in Vietnam, as she could not repay the loan she and her husband borrowed from the Creditor for operating their mechanics business.  The 1^st applicant therefore left Vietnam to avoid the Creditor.  Her husband actually left Vietnam and arrived in Hong Kong before she did for the same reason.  He was also a non-refoulement claimant in Hong Kong.

20.  As to the 2^nd and 3^rd applicant’s case, the 1^st applicant believed that since she had no money to repay the debt owed to the Creditor, the Creditor would harm her and her children as well if they were returned to Vietnam with her.

21.  The 2^nd and 3^rd applicants were both very young when their cases were assessed by the Board, and they were both represented by the 1^st applicant.

22.  This court notes that the Board had enquired with the Duty Lawyer Service (“the DLS”) as to whether they would represent the 3^rd applicant before the Board.  However, the Board was informed that the DLS would not assign any lawyer to represent the 3^rd applicant.  Hence, the Board proceeded to hear the 3^rd applicant’s case with the 1^st applicant being his representative at the Board’s hearing.  However, for the 2^nd applicant, it does not appear from the Board’s A1 & A2 Decision that the Board had made the same enquiry with the DLS.

Oral hearing

23.  The applicants requested for an oral hearing of the Leave Application and their case was heard on 5 February 2026.

24.  At the hearing, only the 1^st applicant was present.  She confirmed that the legal aid applications for both the 2^nd and 3^rd applicants were refused by the Director of Legal Aid and she would not engage any private lawyer to represent them.

25.  When this court asked the 1^st applicant for the grounds of their intended judicial review, she merely said that they wished to continue their stay in Hong Kong and their lives would be at risk if they were to go back to Vietnam.

Legal representation for the 2^nd and 3^rd applicants

26.  Since the 2^nd and 3^rd applicants are minors, the 1^st applicant, in her capacity as the 2^nd and 3^rd applicant’s next friend, must act by a solicitor according to Order 80, rule 2 of the Rules of the High Court. 

27.  However, as the 1^st applicant had confirmed that she would not seek legal representation for the 2^nd and 3^rd applicants, this court will treat the absence of legal representation for the 2^nd and 3^rd applicants as a mere irregularity and it will not nullify the proceedings herein (see Order 2, rule 1(1) of the Rules of the High Court).

Grounds for judicial review

28.  The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

29.  The applicants did not advance any ground for their intended judicial review in their original or Amended Form 86. 

30.  In the 1^st applicant’s supporting affirmation dated 22 October 2020, the 1^st applicant merely stated that she did not agree with the Board’s A1 & A2 Decision without any elaboration.

31.  In her affirmation dated 7 October 2022, the 1^st applicant advanced 4 grounds under the heading “Grounds for appeal”, which were summarised as follows:-

(1)   Since she and the Creditor had not yet agreed on a repayment plan, she and her children would be in danger and be killed if repatriated;

(2)   The creditors and gangsters in Vietnam were cruel, violent and disregarded the law.  Hence, she and her children were at risk of being murdered if returned to Vietnam;

(3)   Internal relocation was not feasible as there would be many difficulties and obstacles that she would have to face in the new location.  Her health was not good, she had to take care of her children and so her competitiveness in the labour market was low; and

(4)   With the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it was also quite possible for the Creditor and gangsters to find out her new residence even if she relocated.

32.  The 1^st applicant did not elaborate on any of the above grounds for challenging the Board’s decisions at the oral hearing before this court.  As aforesaid, she merely said that she and the 2^nd and 3^rd applicants would like to continue to stay in Hong Kong and their lives would be at risk if they were to go back to Vietnam, which cannot be a valid ground for judicial review.

Discussion

33.  The assertions stated in the 1^st applicant’s affirmation dated 7 October 2022 were merely the matters that gave rise to the applicants’ claims for non-refoulement protection, which in fact had been assessed by the Board.  These are not valid grounds for judicial review.  The Board had discussed in depth in both of its decisions as to why their claims were rejected and why internal relocation for the applicants were feasible.  If the applicants are seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.  

34.  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).

35.  Thus, it is not for this court to re-assess the applicants’ cases for non-refoulement protection.  This court will only scrutinize both the Board’s A1 & A2 Decision and the Board’s A3 Decision for any errors of law, procedural unfairness or irrationality, despite the lack of any valid grounds being advanced by the applicants.

36.  In assessing the 1^st and 2^nd applicants’ appeal/petition, the Board held an oral hearing on 3 April 2019.  The 2^nd applicant was represented by the 1^st applicant who confirmed to the Board that the 2^nd applicant would adopt the 1^st applicant’s account. However, it is not clear why the 2^nd applicant did not have legal representation before the Board.

37.  Despite some inconsistencies in the 1^st applicant’s evidence stated in the hearing bundle and those given at the Board’s hearing, the Board could not deny that the 1^st applicant might owe a debt in Vietnam and she was unable to repay the debt to the Creditor.  However, the Board found that the 1^st applicant had in fact never been assaulted by the Creditor in Vietnam.  It was only her husband who was beaten by the Creditor’s men but he did not sustain any serious injury either.  The Board found that the 1^st applicant’s fear did not reach a minimum level of severity.

38.  The Board also found that the applicants’ fear of returning to Vietnam only arose from the 1^st applicant’s inability to repay a debt owed to the Creditor.  The dispute was personal.  There was no evidence to show that the Creditor was a public official or acting in an official capacity.  State acquiescence was not involved.  The threat from the Creditor was not for a Convention reason.

39.  The Board found from reliable country of origin information (“COI”) that despite corruption and shortfalls in the effectiveness of the Vietnamese police, the Vietnamese government had taken measures to combat corruption and criminalize loan shark activities.  The 1^st applicant never reported the threats from the Creditor to the police or the authorities in Vietnam.  The 1^st applicant’s belief that the police would not help her was only her speculation.  The Board found that the applicants would be able to access state protection if they encountered difficulties after their return to Vietnam.

40.  Further, the Board found from the 1^st applicant’s own evidence that she had left her first child with her parents-in-law before she left Vietnam for Hong Kong.  After her departure, the Creditor had on occasions visited her parents-in-law’s place to ask for the whereabouts of the 1^st applicant and her husband.  However, no harm was ever done by the Creditor to the 1^st applicant’s parents-in-law or her daughter (the first child), who stayed with her grandparents all along.  The Board thus found that the Creditor had no real intention to harm the 1^st applicant, her husband, or her family including her daughter.  The Creditor only wanted to put pressure on the 1^st applicant and her husband so that they would repay the debts.  The Board also found that the main target of the Creditor was the 1^st applicant’s husband, who had borrowed the money in his name.

41.  With regards to internal relocation, the Board had considered the 1^st applicant’s assertions about the difficulties that she might face.  The Board found no information showing that the Creditor was as influential as the 1^st applicant claimed.  It was apparent that the Creditor’s influence was localized.  There was no substantial ground for believing that the Creditor would or could mobilise enormous resources to search for the applicants throughout the country merely because of the 1^st applicant’s husband’s default in loan repayment.  

42.  As to the 1^st applicant’s assertion that she would need to register her particulars if she chose to relocate to a new place and she would then be located by the Creditor, the Board found it unreasonable to assume that the Creditor, who was a triad, could be able to access those particulars that were kept by government officials.  The Board found that the 1^st applicant, being a young woman who had 13 years of formal education and specific business experience, would be able to relocate with the 2^nd applicant to another place such as Ho Chi Minh City or Hanoi without undue hardship.

43.  Hence, the Board concluded that both the 1^st applicant and the 2^nd applicant were not entitled to non-refoulement protection under any of the applicable grounds.  This court finds nothing wrong or unreasonable in the way the Board assessed their risk arising out of the 1^st applicant’s debt problem.

44.  As to the 3^rd applicant’s case, the Board held an oral hearing on 12 July 2022 to assess his case, which was again based on the 1^st applicant’s fear of returning to Vietnam because of her inability to repay the debt owed to the Creditor.

45.  The Board came to the same conclusion that the threat from the Creditor was unrelated to the state and was not for a Convention reason, the harm from the Creditor did not reach a minimum level of severity, and state protection would be available to the 3^rd applicant upon his return to Vietnam with the 1^st applicant.

46.  The Board had specifically discussed in length the viability of internal relocation for the 3^rd applicant as a young child with the 1^st applicant.  The Board found that the 3^rd applicant would be able to access free education as a national of Vietnam.  The Board considered from COI that there were non-government organizations (NGO) in Vietnam which provided help to mothers and children in need.  These organizations provided education and scholarships, as well as health protection to children.  There were other NGOs which provided free employment training and internships to women in need and provided English training to their children free of charge or at low costs.  The Board found that both the 1^st and 3^rd applicant could access these NGOs for assistance when they returned to Vietnam.

47.  Thus, the Board concluded that the 3^rd applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

48.  It is clear that the Board had considered the 3^rd applicant’s case separately from the 1^st applicant, and also the 3^rd applicant’s needs as a child.  The 1^st applicant in fact confirmed with the Board that the 3^rd applicant’s risk was based on her debt problem and nothing else (see paragraph 19 of the Board’s A3 Decision).  Thus, the 3^rd applicant’s case had in fact been thoroughly assessed by the Board.  This court finds nothing wrong or unreasonable in the way the Board reached its decision in respect of the 3^rd applicant.

49.  As to the 2^nd applicant’s case, this court notes that the Board did not assess his case separately from the 1^st applicant’s case in the Board’s A1 & A2 Decision, even though it was premised fundamentally on the 1^st applicant’s claim.  It is also not clear why the 2^nd applicant did not have any legal representation.  Thus, the Board might not have followed the principles laid down in the case of Fabio Arlyn Timogan[1], where it was held that “It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations” and “serious consideration should be given to have a lawyer assigned by the Duty Lawyer Scheme to represent the children in the Board hearing”.

50.  However, there was no material to show that there might be any other non-refoulement grounds that relate specifically only to the 2^nd applicant.  This court notes specifically that the Board had discussed the possible threat from the Creditor to the 1^st applicant’s family who were still living in close proximity with the Creditor in Vietnam and its finding that the 1^st applicant’s parents-in-law and her daughter were not assaulted or harmed by the Creditor at all.  The 2^nd applicant’s situation would not be different from that of the 1^st applicant’s daughter, and hence there would not be any risk to the 2^nd applicant if he returned to Vietnam.

51.  In fact, the 2^nd applicant’s situation would not be different from that of the 3^rd applicant either.  The 3^rd applicant’s case had been fully and properly assessed but rejected by the Board.  This court sees no reason why the 2^nd applicant’s case would be assessed differently from the case of the 3^rd applicant, or their outcomes would in any way be different.

52.  Thus, even assuming that the Board had committed an error of law or was procedurally unfair to the 2^nd applicant in not considering his case separately from the 1^st applicant’s case and did not afford him the chance to have legal representation, the 2^nd applicant’s non-refoulement claim would also fail, just like the 3^rd applicant’s case, if it were remitted to the Board for re-consideration.

53.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose (see AW v Director of Immigration and William Lam, CACV 63 of 2015).  As aforesaid, even if the 2^nd applicant’s non-refoulement claim were remitted to the Board for re-consideration, the outcome would still be the same.  This court is therefore not prepared to exercise its discretion to grant any remedy to the 2^nd applicant, as it would serve no practical purpose.

54.  Having rigorously examined the Board’s A1 & A2 Decision, the Board’s A3 Decision and the evidence with anxious scrutiny, this court is satisfied that there is no realistic prospect of success for all three applicants in the Leave Application and hence leave must be refused.

Conclusion

55.  For reasons aforesaid, the 1^st and 2^nd applicants’ Leave Application in respect of the Board’s A1 & A2 Decision is dismissed for being made out of time and also for devoid of merits.  The 3^rd applicant’s Leave Application in respect of the Board’s A3 Decision is also 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