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HCAL 2530/2025
[2026] HKCFI 550
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2530 OF 2025
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BETWEEN
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Ha Thi Manh |
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” and the name of the putative interested party be amended to “Director of Immigration”.
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 14 November 2025, 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 29 September 2025 (“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/2025/HCAL002530_2025_files/the_Board's_Decision.pdf
2. The Board found that the applicant’ application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 21 July 2025, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board and “NON REFOULEMENT CLAiMS PETiTiON OFFiCE” as the putative respondents in Form 86, when only the Board should be so named.
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. The applicant named the Director as the putative interested party but spelt the name wrong.
6. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she feared being harmed or killed by her creditor named Nguyen Van Hoat due to her inability to repay a debt of 500 million Vietnamese Dong.
Disposal on paper
9. 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.
Withdrawal of the Leave Application
10. On 12 January 2026, the Director informed this court that the applicant wrote a letter dated 9 January 2026 to withdraw the Leave Application, as she wanted to go back to her home country and it was safe for her to go back.
11. Moreover, by an undated letter received by this court on 15 January 2026, the applicant applied to close her asylum claim process as she decided to go back to her country Vietnam. However, the applicant did not state in the said letter that it was safe for her to return to her home country this time.
12. There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.
13. 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.”
14. Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the merits of the Leave Application.
Grounds for judicial review
15. 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).
16. The applicant did not advance any ground for her intended judicial review in Form 86. In a 1-page document handwritten in Vietnamese and annexed to her supporting affidavit/affirmation dated 14 November 2025, she merely repeated her danger from her creditor.
17. The applicant’s said handwritten document was translated by an interpreter engaged by the Court Language Section.
Discussion
18. First of all, the applicant’s alleged danger from her creditor had already been 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.
19. 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).
20. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality.
21. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 15 September 2025. The applicant was thus given the chance to present her case to the Board in person.
22. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found that the applicant gave various versions in respect of when and how the creditor’s group visited her, her shop or her home, including the number of times they visited her in the restaurant in Vietnam. The Board did not find the applicant’s account credible and was of the view that the veracity of her claim was questionable.
23. The Board also found the fact that the applicant continued to return to her shop after the alleged attack evident that the alleged risk, if any, faced by the applicant did not appear to be of a substantial nature. The Board also found the alleged ill-treatment she received did not attained a minimum level of severity.
24. The Board found the applicant’s claim that the police in Vietnam would not help her to be her bare assertions without supporting evidence. Contrary to the applicant’s claim in this regard, the Board found from extensive country of origin information (“COI”) that despite the existence of corruption and criticisms as to the effectiveness of the law enforcement, the Vietnamese government was taking steps to combat corruption and improve police efficiency. The Board thus found that state protection would be available to the applicant upon her return.
25. As to the viability of internal relocation, the Board found the applicant’s claim that she could easily be located by her creditor far-fetched and entirely unsubstantiated. There was no evidence that the creditor was sufficiently resourceful to locate her countrywide. The Board found that it would be viable and not unduly harsh for the applicant to relocate to other areas in Vietnam.
26. The Board found that even if the applicant had established that she did borrow money from her creditor, her fear arose solely from her inability to repay the debt. There was no involvement of the state in the alleged ill-treatment. There was no evidence of any well-founded fear of her being persecuted for any of the Convention reasons. The Board concluded that the applicant had failed to establish that she would face a real risk of being subjected to ill-treatment, torture, arbitrary deprivation of life or persecution.
27. The finding of facts, including assessment of evidence, COI and risk of harm was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
28. 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.
29. 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.
30. Moreover, as admitted by the applicant, if it is safe for the applicant to return to Vietnam now, it is clear that she no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.
31. 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).
32. It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review when she has admitted that it is safe for her to go back to her country. Thus, the Leave Application ought to be dismissed in any event.
Conclusion
33. For reasons aforesaid, the applicant’s application to withdraw the Leave Application be refused and 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 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: 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 26838
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1235/25
(formerly RBCZ 5001098/25)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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