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HCAL 2415/2025
[2026] HKCFI 539
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2415 OF 2025
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BETWEEN
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Dinh Thi Hoan |
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 respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 11 August 2025”.
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 28 October 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions which were described as follows:-
“The Decision of the Director of Immigration dated 6th January 2017.
The Decision of the Adjudicator dated 11th August 2025”.
2. The Director of Immigration (“the Director”) rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) on 6 January 2017 (“the Director’s Decision”). The Torture Claims Appeal Board (“the Board”) made a decision dated 11 August 2025 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the Director’s Decision.
3. At the oral hearing before this court on 8 January 2026, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The applicant then confirmed that the Leave Application was only in respect of the Board’s Decision, which can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002415_2025_files/the_Board's_Decision.pdf
4. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. Hence, the Board rejected the applicant’s appeal/petition against the Director’s Decision and confirmed the same.
Amendments
5. The applicant named both the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents and did not name any putative interested party in Form 86.
6. In fact, the adjudicator was only making the Board’s Decision in his capacity as a member of the Board. Moreover, as only the Board’s Decision is the subject matter of the Leave Application, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
7. 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.
8. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.
9. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party, and to amend the decision in respect of which relief is sought in the Leave Application to “Torture Claims Appeal Board’s decision dated 11 August 2025”.
The applicant’s case
10. 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.
11. In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to Vietnam, she would be harmed or killed by her creditor named Tham due to her inability to repay a loan of 250 million Vietnamese Dong.
Oral hearing
12. The applicant requested for an oral hearing of the Leave Application and her case was heard on 8 January 2026.
13. The applicant annexed a document to her supporting affirmation dated 28 October 2025 with the title “Grounds on which Relief is sought”. When this court asked the applicant to elaborate on the grounds stated therein, she merely said that she would rely on the grounds written there and she could not go back to Vietnam because she was facing a debt problem there.
Grounds for judicial review
14. 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).
15. The contents of the said document with the title “Grounds on which Relief is sought” 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 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. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
16. As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing. She only mentioned that she was facing a debt problem in her country, which was not a ground for judicial review.
Discussion
17. As mentioned, all the grounds contained in the document with the title “Grounds on which Relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali, supra). The applicant also confirmed that only the Board’s Decision is 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.
18. Paragraphs 2 to 4 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraph 1 of the grounds is relevant to the Leave Application.
19. In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either.
20. In any event, the Board did assess the applicant’s risk of right to life but concluded that there was nothing in her case that supported her claim on BOR 2 Risk[1].
21. In paragraph 1, the applicant also alleged that the Board failed to give her sufficient time and chance to arrange relevant evidence to her non-refoulement claim as well as her appeal.
22. This court notes that the applicant made her non-refoulement claim under the USM in as early as 2014. The Director rejected her non-refoulement claim in 2017 and the applicant filed an application for late filing of her Notice of Appeal/Petition to the Board on 18 June 2025. Her late application was subsequently allowed by the Board on 2 July 2025 and the Board heard her case on 4 August 2025.
23. Thus, the applicant has more than 10 years to prepare for her non-refoulement claim and her appeal/petition before the Board’s hearing. It is clear that the applicant did have ample time to prepare and/or collect any documents she wished to submit in support of her claims. Thus, the applicant’s complaint that the Board failed to give her sufficient time and chance to arrange relevant evidence to her non-refoulement claim as well as her appeal is totally groundless.
24. 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”.
25. Thus, none of the grounds that were contained in the applicant’s said document 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, or are completely unfounded.
26. The applicant’s alleged danger in her home country had been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
27. 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).
28. 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.
29. In assessing the appeal by the applicant, the Board arranged an oral hearing on 4 August 2025 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.
30. The Board found that the applicant’s fear only arose from her inability to repay a loan, which was a private matter. Based on the evidence, the Board found that had Tham been serious in harming or killing the applicant, Tham could have done it at any time before the applicant left Vietnam in October 2014. The inference was that the threats were merely measure to pressurise the applicant to repay the loan. The Board did not consider the ill-treatment and injuries she sustained were so severe as to amount to torture or reach a minimum level of severity, and her fear of ill-treatment did not fall within the definition of persecution.
31. Moreover, the Board found from country of origin information (“COI”) that although corruption and inefficiency was common in all levels of the police force, the Vietnamese government had undergone reforms to combat police corruption and improve their efficiency. The applicant had in fact never sought assistance from the police.
32. The Board also found that there should be viable options for the applicant to settle at an alternative place in Vietnam. There was no evidence to show that Tham was powerful, influential and resourceful enough to locate the applicant had she moved to stay and live in provinces or cities other than her own. The applicant had 12 years of education and 4 years of work experience including running her own business. The Board considered that the applicant should have no difficulty to live a normal life if she relocated to another province or city to avoid Tham upon her return to Vietnam.
33. The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
34. 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.
35. 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
36. For reasons aforesaid, the Leave Application is dismissed.
Dated the 28th day of January 2026
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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 the applicant’s 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:
28 January 2026
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:
28 January 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 26537
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2773/16
(formerly RBCZ/3002287/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
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