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HCAL 840/2026
[2026] HKCFI 4091
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 840 of 2026
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BETWEEN
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To Quang Tam acting as the next friend of To Thao Nhi |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
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 (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
1. Leave to apply for Judicial Review be refused.
2. Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the applicant’s application a nullity.
Observations for the Applicant:
THE APPLICATION
1. The 1st named is the father (“the father”) acting as the next friend of the 2nd named, the applicant, his daughter (“the daughter”) born on 7 January 2024 in Hong Kong. The father is an illegal immigrant. He had applied for non-refoulement claim and failed. His application for leave to apply for judicial review of the Board’s Decision dated 15 November 2018 in HCAL 1279 of 2019 was dismissed by the Court of First Instance. See [2024] HKCFI 947.
2. The father filed Form 86 for the applicant to apply for leave to apply for judicial review of the Decision dated 16 February 2026 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application relies upon the facts of the father and her mother.
3. The applicant did not ask for a hearing. I shall deal with her application on the papers.
4. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party; and the 1st named is acting as the next friend of the applicant.
The applicant
5. The father is a national of Vietnam. He is an illegal immigrant. He had failed in his non-refoulement claim.
6. On behalf of the daughter, the father lodged a non-refoulement claim for the applicant on the basis that, if refouled, the applicant’s parents will be harmed or abducted by her parents’ creditors for failing to repay their debts.
7. Details of the facts are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000840_2026_files/the_Board's_Decision.pdf.
The Director’s Decision
8. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
9. By way of the Director’s Decision dated 13 November 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.
The Board’s Decision
10. The applicant appealed the Director’s Decision to the Board. On 9 February 2026, the Board conducted an oral hearing for the appeal. The father and mother were present and had given evidence and answered the Board’s questions.
11. Having considered the evidence, the Board made the findings below.
(1) The parent’s debt has nothing to do with the applicant. [49]
(2) Although the creditors had threatened to harm or kill the applicant’s parents and their family, they had done nothing that suggested that they were serious in harming or killing either the applicant’s parents, or any of her parents’ family members. [50]
(3) It is clear that all these threats were empty threats and were made merely as a measure to pressurize the applicant’s parents to repay their loans. [56]
(4) There are laws in Vietnam to protect the legitimate interests of children.[57]
(5) Vietnam is a member of the Convention on the Rights of the Child of the United Nations, which provides 4 basic principles of children’s rights: (1) rights to survival; (2) rights to development; (3) rights to protection; and (4) rights to participation. The Vietnamese government has adopted the principles into its law. [58]
(6) Internal relocation of the parents together with the applicant is viable. [73]
12. For the reasons above, the Board dismissed the appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review
13. The applicant filed Form 86 on 4 May 2026 for leave to apply for judicial review of the Board’s Decision.
14. In support of the application, the father has attached a copy of the Board’s Decision to his affirmation.
DISCUSSION
15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
17. This is a separate assessment of the applicant’s case by the Board. Though the applicant was not legally represented before the Board, it is clear that the Board had taken on board the Court of Appeal case of Fabio. I do not see any other child specific issue that was not presented to the Board for its consideration because of lack of legal representation. There is no reasonable basis for this Court to interfere with the Board’s Decision.
18. The applicant therefore fails to show that there is any realistic prospect of success in the proposed judicial review.
DISPOSITION
19. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss the application.
20. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the applicant’s application a nullity.
Dated the 5th day of August 2026
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(Klein Tse)
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 to the Applicant
on 5/8/2026
To Quang Tam acting as the next friend of To Thao Nhi
Applicant’s ref. no:
Nil. |
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Sent 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 5/8/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 27571
Director of Immigration
Putative Interested Party’s ref. no.: VRD 1486/1/15 (L) (CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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