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HCAL 3817/2019
[2025] HKCFI 3118
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3817 OF 2019
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BETWEEN
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Do Thi Xuan |
1st Applicant |
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Do Duc Nhan |
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 name of the putative interested party be amended to “Director of Immigration”.
2. The 1st applicant’s application to withdraw the application for leave to apply for judicial review on behalf of herself and the 2nd applicant be refused.
3. The 1st and 2nd applicants’ 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 23 December 2019, the 1st applicant, on behalf of herself and the 2nd 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 29 November 2019 (“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/2019/HCAL003817_2019_files/the_Board's_Decision.pdf
2. The 2nd applicant is the 1st applicant’s son and a minor born in Hong Kong in 2018. Hence, the 1st applicant was representing the 2nd applicant all along including the Leave Application.
3. The Board decided that the 1st and 2nd applicants’ claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the decisions of the Director of Immigration (“the Director”) dated 11 September 2017 and 24 June 2019[1], which rejected the 1st and 2nd applicants’ claims for non-refoulement protection respectively.
Amendment
4. The applicants named the Board as both the putative respondent and the putative interested party in Form 86, when the Board should just be the putative respondent and the Director should be the putative interested party.
5. Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.
The applicants’ case
6. 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.
7. In sum, the 1st applicant claimed for non-refoulement protection because she feared being harmed or killed by her creditors in Vietnam, as she could not repay the loans borrowed from the creditors for operating her seafood business.
8. As to the 2nd applicant’s case, the 1st applicant thought that people might have informed her creditors that she gave birth to the 2nd applicant in Hong Kong in 2018. The 2nd applicant was just a baby when the Board’s Decision was made. He shared the same grounds of appeal/petition as the 1st applicant when his case was considered by the Board.
Withdrawal at the oral hearing
9. The applicants requested for an oral hearing of the Leave Application and their case was heard on 8 July 2025.
10. At the hearing, only the 1st applicant was present. She told this court that since she was in jail previously and had been in detention under the Immigration Department after her release from prison, the 2nd applicant was in the custody of the Social Welfare Department and could not attend the hearing.
11. The 1st applicant said that she wrote a letter to the Immigration Department to withdraw the Leave Application in the same morning as the hearing (which was subsequently received by this court via the Director’s letter dated 15 July 2025 but the applicant’s letter was dated 9 July 2025 ie one day after the hearing). However, at the hearing, the 1st applicant said that she did not really want to withdraw the non-refoulement claim and the Leave Application. She only wanted to be released from detention and to go back to Vietnam with her son.
12. This court asked her if she had received the letter from this court dated 4 February 2025 reminding her the requirement that the 2nd applicant must be represented by a solicitor. The 1st applicant replied in the affirmative but said that since she could not read English, she only learnt of the letter’s contents when a friend interpreted it to her on a later date. This court then requested the interpreter to translate the contents of the letter to her. The 1st applicant confirmed her understanding of the contents therein but said that she decided not to seek legal representation for the 2nd applicant as she wanted to go back to Vietnam with her son.
13. The 1st applicant also confirmed with this court that it is now safe for both of them to return to Vietnam as her problem has been solved, and she would make arrangement for the 2nd applicant to go to school when they are back in Vietnam.
14. Moreover, the 1st applicant said that the 2nd applicant’s father, who was also a Vietnamese and a non-refoulement claimant but had already returned to Vietnam, would not help to take care of the 2nd applicant, and she would be the only one to take care of the 2nd applicant.
15. Since the 1st applicant expressly mentioned that she did not want to withdraw the Leave Application and the true intention of writing the letter to withdraw was for her to be released from detention, this court is of the view that the withdrawal application cannot be regarded as being made out of her own volition.
16. In any event, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
17. Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicants. The 1st applicant’s application to withdraw the Leave Application on behalf of herself and the 2nd applicant is therefore refused. This court will proceed to consider the merits of the Leave Application.
Legal representation for the 2nd applicant
18. Since the 2nd applicant is a minor, the 1st applicant, in her capacity as the 2nd applicant’s next friend, must act by a solicitor according to Order 80, rule 2 of the Rules of the High Court.
19. However, as the 1st applicant has confirmed that she would not seek legal representation for the 2nd applicant, and as discussed below, there is no merits for the 2nd applicant’s intended judicial review, it would not serve any useful purpose for him to be legally represented.
20. Thus, this court will just treat the absence of legal representation for the 2nd applicant 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
21. 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).
22. The applicants did not advance any ground for their intended judicial review in Form 86. In the 1st applicant’s supporting affirmation dated 23 December 2019, the 1st applicant merely stated what she had told the Board and what the creditors in Vietnam did to her causing her to flee to Hong Kong to seek protection.
23. The 1st applicant did not mention any ground for challenging the Board’s Decision at the oral hearing before this court either.
Discussion
24. The assertions stated in the 1st applicant’s affirmation were merely the matters that gave rise to her claim for non-refoulement protection, which in fact had been assessed by the Board. These are not valid grounds for a judicial review. If the 1st applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
25. 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).
26. Thus, it is not for this court to re-assess the applicants’ case for non-refoulement protection. This court will only scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality, despite the lack of any grounds advanced by the applicants.
27. In assessing the applicants’ appeals, the Board held an oral hearing on 23 September 2019. The Board found that the 1st applicant was not a witness of truth. The Board found her case consisted of mere bare assertions with no objective proof and there were implausibilities in her claims. The Board did not accept that the allegations of threats and harm from the 1st applicant’s creditors were credible, and found that the applicant did not face a real risk of harm or danger. The Board therefore found that the 1st applicant failed to establish any of the applicable grounds under the USM.
28. The Board found from reliable country of origin information (“COI”) that although the Vietnamese police was said to have operated with significant discretion, little transparency and limited insight, they were generally effective at maintaining public order. The Vietnamese government had taken measures to combat corruption and criminalize loan shark activities. Thus, the applicants would be able to access state protection in respect of any harm threatened by the creditors, if there were any.
29. The Board did not find it necessary to consider the viability of internal relocation as the 1st applicant’s claims and the matters giving rise to her claims for non-refoulement protection were rejected in their entirety. It nevertheless considered that given the 1st applicant’s work experience, the applicants could relocate to other parts of Vietnam away from the 1st applicant’s home area without undue hardship. The 1st applicant managed to avoid her alleged creditors when she stayed in Haiphong. It was apparent that the influence of the alleged creditors was localized.
30. Hence, the Board concluded that the 1st applicant was not entitled to non-refoulement protection under any of the applicable grounds.
31. As the 2nd applicant shared the same grounds of appeal/petition, the Board dismissed the 2nd applicant’s appeal/petition for the same reasons. Although the Board simply adopted the same reasons for dismissing the 2nd applicant’s appeal/petition, it is clear that the Board did consider the 2nd applicant’s case separately.
32. The 2nd applicant’s claim was premised fundamentally on the 1st applicant’s claim and it was not a case that the 2nd applicant as a baby could have given any evidence to the Board. There was also no material to show that there might be any other non-refoulement grounds that relate specifically only to the 2nd applicant. Thus, this court does not find anything wrong for the Board to adopt the same reasons for dismissing the 2nd applicant’s appeal/petition.
33. The assessment of evidence, COI materials and risk of harm were primarily within the sole ambit of the Board on appeal/petition. The Board was entitled to come to its own conclusion. This court finds no errors of the Board in reaching its decision based on all the evidence before it.
34. Moreover, it is clear from the testimony of the 1st applicant during the oral hearing before this court that it was her intention to bring the 2nd applicant back to Vietnam with her as soon as possible and that it was safe to do so. This confirms that the applicants do not have any ground for non-refoulement protection at all. Thus, the intended judicial review is simply without any merits.
35. 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.
36. 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 has to be a reasonably arguable claim which enjoys 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
37. For reasons aforesaid, the 1st applicant’s application to withdraw the Leave Application on behalf of herself and the 2nd applicant is refused, and the Leave Application is dismissed for devoid of merits.
Dated the 22nd day of July 2025
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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: 22 July 2025
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: 22 July 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 8607/17/9/279/V1697
USM 16072/19/7/38/V2314
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 342/19 (Formerly RBCZ 10236/19)(T2I99)
QA T/C 1883/17 (Formerly RBCZ 3001358/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The date of this decision was wrongly stated to be “5 April 2018” in the Board’s Decision.
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