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HCAL 865/2025
[2025] HKCFI 3083
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 865 of 2025
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BETWEEN
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Hoang Nguyen Phuc Duong |
1st Applicant |
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Hoang Nguyen Nam Khanh |
2nd Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
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:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
The procedural history
1. Although the Board’s Decision was written in Chinese, since the applicants prepared their affirmation in English, I shall write this Form CALL-1 in English.
2. The 1st applicant, aged 20, male, and the 2nd applicant, aged 18, male are brothers and the 3rd and the 4th applicants in HCAL 1764 of 2018 together with their parents, the 1st and the 2nd applicants. The facts in support of their claims rely on their parents’ case. They are Vietnamese nationals and they came to Hong Kong as visitors on 29 April 2015 and subsequently overstayed. They raised their non-refoulement on the basis that they will be harmed or killed by their creditors if they return to Vietnam because they are unable to repay the debts. Their claim relied on all the applicable risks[1].
3. The Director of Immigration (“the Director”) rejected their non-refoulement claim. They appealed to the Torture Claims Appeal Board; (“the Board”). The Board dismissed their appeal and they applied for judicial review of the Board’s decision. This Court dismissed their application on 7 July 2020.
4. In Fabio Arlyn Timogan & Others v. Evan Ruth, Esq, Adjudicator of Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2020] HKCV 971, Hon Lam VP, Barma and Au JJA, 27 November 2020 at paragraph 23 held that if the minor applicants were not legally represented before the Board, the Board should separately consider the child specific issues, apart from the parents’ case.
5. The applicants appealed to the Court of Appeal against this Court’s decision. The Court of Appeal in its decision dated 3 December 2021 HKCA 1794 (“the Court of Appeal judgment”) dismissed the parents’ appeal, but allowed the appeal of the children, the 1st and the 2nd applicants in this case, for the reasons that there was insufficient separate consideration for them; in particular, the personal circumstances of the 2nd applicant in this case and there did not appear to have been sufficient consideration on the feasibility of internal relocation for them as well as the impact on them as minors in the Board’s decision.
6. Insofar as this Court is concerned, the Court of Appeal held:
“17. … At the oral hearing before the judge, the 1st applicant (the mother) submitted that there is concern their location will be leaked as their sons have to go to other schools even if they relocate to other places. However, the judge did not deal with this concern in his decision.
18. We consider the 3rd and 4th applicants’ application for judicial review reasonably arguable. …”
7. By consent of the parties, the previous Board’s Decision in respect of the 3rd and the 4th applicants was set aside and their application was to be determined by a different constituted Board.
The Board’s Decision
8. The 1st and the 2nd applicants appeared before the Board at a hearing held on 17 October 2023, 1 December 2023 and 13 December 2023. Both parties were legally represented. The Board had made extensive enquiry into the facts of the case [8-139] and came to the conclusion that the applicants will not be traced by the creditor. [139] It will be extremely difficult for the creditor to locate them, given the population and the geographical extensiveness of Vietnam. It further found that they may relocate themselves to live in Hanoi. [142] The Board assessed their case in respect of each of the applicable risks and dismissed their claim. [145]-[160] By the Board’s Decision dated 9 May 2024 (“the Board’s Decision”), the Board dismissed the 1st the 2nd appellants’ appeal. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000865_2025_files/the_Board's_Decision.pdf.
The applicants’ joint application
9. By Form 86 filed on 10 April 2025, the applicants jointly apply for leave to apply for judicial review of the Board’s Decision.
10. The applicants did not request a hearing. I shall deal with their application on the papers.
Application for leave to apply for judicial review
11. The applicants filed Form 86 in English on 10 April 2025 for leave to apply for judicial review of the Board’s Decision. The applicants did not put forth any valid grounds in support of their application.
12. In their applicant’s affirmation in support of their application, the applicants said they had applied for legal aid, but the Director of Legal Aid refused their application. They did not raised any specific issues against the Board’s Decision.
DISCUSSION
13. 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 applicants’ 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).
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
15. Bearing in mind the Court of Appeal’s concerns in the Court of Appeal judgment and having considered the Board’s Decision, I consider that the applicants’ application is bound to fail and should be dismissed for the following reasons.
(1) The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, 21 December 2012 held:
“176. …the Court should assess the risk at the time of the proceedings, taking account of information … in order to ensure that the Court is able to make a ‘full and up-to-date assessment’ of the current situation.”
(2) The updated information about the applicants is they are now of age. The child specific issues do not apply to them.
(3) The Board, in the Board’s Decision found that the creditors will not trace them if they return to Vietnam and they will not be at genuine risk of being harmed by the creditors.
(4) Internal relocation if viable for the applicants.
(5) The applicants have raised no specific reasons to challenge the Board’s Decision.
16. The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.
DISPOSITION
17. I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.
Dated the 22nd day of August 2025
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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 Applicants
on 22/8/2025
Hoang Nguyen Phuc Duong
and
Hoang Nguyen Nam Khanh
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 22/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10591(R);
USM 10592(R)
Director of Immigration
Putative Interested Party’s ref. no.:
RBCL/1337/15(CZ)
RBCL/1338/15(CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The applicable risks refer to:
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”).
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