HOANG THI NGOAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1232/2023

[2025] HKCFI 4588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1232 OF 2023

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 andoral submissions by the applicant or counsel in open court;

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 application to withdraw the application for leave to apply for judicial review 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 20 July 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 14 July 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/HCAL001232_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to demonstrate that she was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed her appeal/petition and affirmed the decision of the Director of Immigration (“the Director”) dated 10 August 2022 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” and “Director of Immigration” as the putative respondents but did not name any putative interested party, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party. 

4.  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.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be at risk of being harmed or killed by a moneylender named Dao as she had borrowed 100 million Vietnamese Dong from Dao and was unable to repay Dao.

Withdrawal of the Leave Application

8.  By her latest affirmation dated and filed on 4 June 2025, the applicant made an ex parte application for leave to withdraw the Leave Application.  The applicant stated in the affirmation that she wanted to withdraw her application for judicial review out of her own free will because her problem in relation to her loan had been resolved in her home country, her life would no longer be in danger, she could safely return and she wanted to go back to Vietnam to start a new life.

9.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing even though she had previously requested one.

10.  However, 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.”

11.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large by granting leave to the applicant to withdraw the Leave Application.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

12.  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).

13.  The applicant annexed a document to her Form 86 with the title “Grounds on which relief is sought”.  Many other applicants in similar applications had in fact used the contents of this document and it is like a template for them.

Discussion

14.  First of all, some of the grounds stated in the documents titled “Grounds on which relief is sought” were directed at the Director.  As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be the subject matter of the Leave Application.  This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

15.  However, the grounds that were advanced against the Board’s Decision were all very general and without any particulars related to the applicant’s own case.  They only contained “keys words” such as the Board was procedurally improper and/or unfair, the Board’s Decision was unreasonable, unfair and irrational, and the Board placed too much reliance on country of origin information (“COI”), etc.

16.  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”.

17.  Thus, none of the grounds that were contained in the document titled “Grounds on which relief is sought” 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.

18.  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).

19.  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.

20.  In assessing the applicant’s appeal, the Board held an oral hearing on 23 June 2023.  After due consideration of the evidence and the oral testimony of the applicant, the Board concluded that the applicant had not established that she would face any of the proscribed forms of harm if refouled.  The Board found the applicant’s evidence incredible and rejected her evidence.

21.  The Board found, and the applicant agreed, that the evidence in her claim was based only on her assertion.  The applicant even admitted at the Board’s hearing that she did not borrow money from Dao, who in fact was a fish wholesaler, and the applicant only bought fish from her on credit.  When the Board asked the applicant to explain or clarify the various significant inconsistencies, the applicant only replied that she could no longer recall anything.

22.  There was no evidence to support any aspect of the applicant’s claim that she borrowed money from a moneylender in January 2020, and that she had been threatened and assaulted by the moneylender when she was unable to pay the monthly interest after only three months.  Even on the applicant’s own evidence, she did not suffer any serious injuries from the three claimed incidents of assault.  She did not see a doctor and did not report the matters to the police.

23.  Further, the Board had considered extensive COI and was satisfied that although there were problems with police efficiency and corruption in Vietnam, the Vietnamese government was positively taking serious action to combat corruption.  The police was also seriously dealing with crimes involving illegal moneylenders and debt collectors.  There was nothing to show that the Vietnamese government was unwilling or incapable to enforce the law, stop corruption and combat crimes.  Thus, the Board found that reasonable state protection was readily available to the applicant in Vietnam.

24.  Moreover, the Board also found that the applicant, being a 65 year-old woman with 54 years of work experience as a fisherman and a fishmonger, could reasonably relocate without undue hardship to large cities like Ho Chi Minh City and Danang where there were ample work opportunities.  The chance of the moneylender being able to find her in these Vietnamese cities was minimal.  Internal relocation was therefore an available alternative for the applicant.

25.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to reach its decision.  The applicant’s alleged danger in her home country had indeed been duly assessed by the Board.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

26.  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.

27.  In fact, as the applicant had confirmed that her problem in relation to her loan had been resolved in her home country and her life would no longer be in danger, there is absolutely no ground for her to make any non-refoulement claim and the Leave Application serves no practical purpose.

28.  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, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

29.  Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as her issues in her home country have been resolved. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

30.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

31.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

32.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and 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