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HCAL 1472/2023
[2026] HKCFI 3400
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1472 OF 2023
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BETWEEN
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Trinh Thi Nhan |
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 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 21 August 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 6 June 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/HCAL001472_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 May 2022 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties, and spelt the Board’s name wrong.
4. In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
5. This court therefore 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
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 harmed or killed by two moneylenders due to her inability to repay the outstanding loans.
Disposal on paper
8. 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. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
9. 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).
10. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 21 August 2023. She merely stated in the said affirmation that she did not agree with the Board’s Decision because she could not go back to her home country and her life was in danger over there.
Discussion
11. First of all, the applicant’s danger in her country had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
12. 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).
13. 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 as aforesaid.
14. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 3 May 2023. The applicant was present and was thus given the chance to present her case to the Board in person.
15. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.
16. In gist, the Board found the applicant’s account not credible and hence her account was rejected as untruthful. The Board found that the applicant’s intentional delay in seeking protection was unfavorable to her credibility. The applicant did not adduce any support for her material assertions, including: (1) she owed the moneylenders the debts; (2) she operated her fashion shop in 2015 but it collapsed in about a year; (3) the moneylenders physically assaulted her and threatened to kill her in December 2015; and (4) the moneylenders had the resources to hunt for and would harm her wherever she moved in Vietnam.
17. The Board did not accept her evidence about the fashion shop business, and that the applicant was indebted as claimed. There was insufficient evidence to substantiate the applicant’s account that she had been physically assaulted and threatened by the moneylenders. After consideration of the applicant’s assertion and relevant country of origin information (“COI”), the Board found insufficient evidence to accept the applicant’s claim that the moneylenders were resourceful and could locate her anywhere in Vietnam.
18. In any event, the Board found on the applicant’s evidence that the applicant’s injuries suffered, if any, from the 1st moneylender’s assault were not serious and she was never attacked by the 2nd moneylender. The gravity of ill-treatment the applicant faced was low, and any ill-treatment she might face upon refoulement would not be due to a Convention reason. Her disputes with the moneylenders were purely private in nature.
19. The Board further found that even if the 2nd moneylenders’ two sons were police officers as claimed, there was no evidence indicating that the 2nd moneylender was backed by the local police. Moreover, there was no evidence that the local government tolerated or condoned the acts of moneylenders like the ones the applicant was indebted to. The element of state acquiescence was lacking in the applicant’s case.
20. The Board had gone through extensive COI and found that despite corruption in the police and government, steps were being taken to improve the situation. The Board found that there was a reasonably effective criminal legal system and channels of complaint against corruption in Vietnam. The Board accepted that reasonably sufficient state protection was available to the applicant in her country.
21. Given its findings as aforesaid, the Board considered that the issue of internal relocation did not arise. However, the Board explicitly stated that if it were necessary to consider the same, the Board considered that it was reasonable or not unduly harsh for the applicant to reside and work anywhere within Vietnam, especially Ho Chi Minh City, Ha Noi, Da Nang, or Nha Trang (see paragraphs 106 to 111 of the Board’s Decision).
22. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
23. The finding of facts relating to a non-refoulement claim, including the 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 decision.
24. 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.
25. 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 10th day of June 2026
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( Gladys 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: 10/06/2026
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: 10/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 20435
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 253/22 (Formerly RBCZ 5000099/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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