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HCAL 1486/2021
[2026] HKCFI 4878
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1486 OF 2021
BETWEEN
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Nguyen Thi Phuong Oanh |
1st Applicant |
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Dao Nhu Y (a minor) |
2nd Applicant |
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by Nguyen Thi Phuong Oanh, her next friend |
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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, “Nguyen Thi Phuong Oanh” be named as the 1st applicant, the other applicant “Dao Nhu Y” be named as the 2nd applicant but her name be amended to “Dao Nhu Y (a minor) by Nguyen Thi Phuong Oanh, her next friend”, and the name of the putative respondent be amended to “Torture Claims Appeal Board”.
2. Leave granted to both the 1st the 2nd applicants to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 11 October 2021.
3. The 1st and 2nd applicants are directed to issue an originating summons for the intended judicial review on or before 9 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Observations for the applicants:
The Leave Application
1. By way of Form 86 dated and filed on 25 October 2021, the applicants 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 11 October 2021 (“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/2021/HCAL001486_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicants’ claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicants’ appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 July 2020 and affirmed the same, which rejected the applicants’ non-refoulement claims.
Amendments
3. In Form 86, the applicants’ names were not stated properly. Thus, on this court’s own motion, “Nguyen Thi Phuong Oanh” is named as the 1st applicant. The other applicant, “Dao Nhu Y”, who is the 1st applicant’s daughter and a minor, is named the 2nd applicant. The 2nd applicant is represented by the 1st applicant as her next friend and her name is amended to “Dao Nhu Y (a minor) by Nguyen Thi Phuong Oanh, her next friend” on this court’s own motion.
4. The applicants named the Board / Non-refoulement Claims Petition Office and the Director as the putative respondents in Form 86, when only the Board should be so named.
5. 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.
6. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.
Legal representation of the 2nd applicant
7. The 2nd applicant is a minor born in Hong Kong on 14 August 2019 and is represented by the 1st applicant in the Leave Application.
8. The 1st applicant applied for legal aid for the 2nd applicant, but the application was refused by the Director of Legal Aid on 16 June 2026.
9. At the hearing before this court on 13 August 2026, the 1st applicant confirmed that she would not engage a private lawyer to represent the 2nd applicant.
10. As the 2nd applicant was legally represented both before the Director and the Board, and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation for the 2nd applicant in the Leave Application was a mere irregularity and it would not prejudice the 2nd applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application.
The applicants’ case
11. It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
12. As summarised by the Board in paragraphs 34 of the Board’s Decision, the applicants’ case was that (a) the 1st applicant suffered domestic violence from her husband between 2013 and 2016; (b) the 1st applicant’s husband forced the 1st applicant to sell sex, deliver drugs and participate in illegal activities; and (c) the 1st applicant’s husband was a criminal gangster who had extended network and resources, and would hunt for and harm the applicants wherever they moved in Vietnam.
13. The 1st applicant claimed that the 2nd applicant’s father was her boyfriend whom she met in 2018 after she withdrew her first non-refoulement claim in Hong Kong and was returned to Vietnam. After the 1st applicant’s husband discovered that the 1st applicant was pregnant with the 2nd applicant, the husband locked her up in a room and threatened to report to the police that she sold sex and committed adultery. Subsequently, the 1st applicant promised her husband to do whatever as he directed, and then the husband released her from the room.
14. The 1st applicant also claimed that her husband had threatened to kill the 2nd applicant, who was not his child.
Oral hearing
15. The applicants requested for an oral hearing of the Leave Application and their case was heard on 13 August 2026.
16. At the hearing, the 1st applicant confirmed that her application to the Legal Aid Department for legal aid for the 2nd applicant was refused, and she would not engage a private lawyer to represent the 2nd applicant.
17. As aforesaid, the 2nd applicant is a minor and was represented by her mother, ie the 1st applicant, at the hearing.
18. When this court asked the applicants for their grounds of the intended judicial review, the 1st applicant replied that her husband in Vietnam was a drug addict and he forced her to work as a prostitute. When she refused to do so, her husband locked her up and assaulted her. She said that her husband had done that many times, and hence she fled.
19. The 1st applicant then said that her friend told her that her husband came to know that she has a daughter in Hong Kong. The 1st applicant was afraid that her husband would do undesirable things to the 2nd applicant, in that he might take her and sell her.
20. The 1st applicant said that the biological father of the 2nd applicant is a Vietnamese non-refoulement claimant in Hong Kong. The three of them used to live together in Hong Kong, but he was arrested.
21. With regards to any child specific grounds for the 2nd applicant, the 1st applicant confirmed that the 2nd applicant is not of mixed race, and she only wanted the 2nd applicant to stay and study in Hong Kong.
Grounds for judicial review
22. The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
23. The applicants did not advance any ground for their intended judicial review in their Form 86.
24. In the 1st applicant’s supporting affirmation dated 25 October 2021, she only mentioned that she could not return to Vietnam because her life would be in danger.
25. As aforesaid, at the oral hearing, the 1st applicant merely mentioned the factual basis of the non-refoulement claims for herself, she was worried that her husband would do undesirable things to the 2nd applicant, and she wanted the 2nd applicant to stay and study in Hong Kong.
Discussion
26. This court will first deal with the 2nd applicant’s application.
27. At the oral hearing before this court, the 1st applicant acting for the 2nd applicant expressed her concern that the 2nd applicant might be taken and sold by the 1st applicant’s husband.
28. As can be seen from paragraph 32(b) of the Board’s Decision, the applicants had, through their legal representative, presented that the 1st applicant’s husband had verbally threatened the 1st applicant’s parents that he would take away the 2nd applicant.
29. Thus, the 1st applicant’s concern that her husband would take away the 2nd applicant should have been considered by the Board.
30. As can be seen from paragraph 94 of the Board’s Decision, the Board was clearly aware of the principles as laid down by the Court of Appeal in Fabio Arlyn Timogan and Ors v Evan Ruth and Anor [2020] HKCA 971 regarding the assessment of children claimants’ cases. However, in this court’s view, the Board did not properly assess the 2nd applicant’s risks and the Board’s conclusion in relation to her case was irrational.
31. First, this court notes that in paragraph 97 of the Board’s Decision, where the Board discussed its assessment of the 2nd applicant’s risk of being killed by the 1st applicant’s husband, the Board did not accept that the 1st applicant’s husband would kill the 2nd applicant if she was returned to Vietnam. However, such conclusion was based on the Board’s finding that “According to the NCF[1] and A1[2]’s oral evidence, during the 5 months immediately before her departure from Vietnam, Husband[3] knew that A1 was pregnant with Boyfriend[4]’s baby but Husband did not force her to abort her pregnancy. A1 explained that her unborn baby was safe because she agreed to do whatever Husband ordered her to do. However, Husband actually did not ask A1 to do anything for a period of 5 months. It is also not accepted that Husband can commit murder with impunity. According to A1’s claimed facts, Husband had ample opportunities to kill A2[5] but he did not do so.”
32. This court considers that the Board’s reasoning in this aspect was irrational. In essence, the Board was saying that the 2nd applicant could be killed before she was born, but since the 1st applicant’s husband did not force the 1st applicant to have abortion back then when the 2nd applicant was a fetus, the 2nd applicant faced no risk of being killed after being born.
33. The Board also seems to have found that the 2nd applicant would not be killed by the 1st applicant’s husband because he could not commit murder with impunity. However, in this court’s view, it is totally irrelevant whether the 1st applicant’s husband would have impunity or not. The crucial consideration should be whether there was a real risk that the 2nd applicant would be killed by the 1st applicant’s husband. It is irrational to think that someone would not commit a crime when there is no impunity.
34. Further, in the Board’s assessment of the 2nd applicant’s BOR 3 Risk[6] and BOR 2 Risk[7] under the USM, this court notes that the Board’s conclusions for the 2nd applicant were stated in paragraphs 118 and 121 of the Board’s Decision as follows:-
BOR 3 Risk –
“118. ... it is not accepted that A1 had suffered serious physical or mental ill-treatment from Husband. Bearing in mind A2 is a minor, the Board also does not find any circumstance that the Appellants are at risk of torture or CIDTP[8] if they are returned to Vietnam.”
BOR 2 Risk –
“121. ... it is not accepted that A1 had suffered serious physical or mental ill-treatment. Bearing in mind A2 is a minor, the Board does not find any circumstance that the Appellants are at risk of arbitrary deprivation of life if they are returned to Vietnam.”
35. The reasoning given by the Board as aforesaid indicated that the Board may not have considered the risk that the 1st applicant’s husband might take away the 2nd applicant as submitted by the legal representative for the applicants, apart from bearing in mind that the 2nd applicant was a minor.
36. It is also plain that the Board was aware that the 2nd applicant was an illegitimate child born out of wedlock to the 1st applicant and her boyfriend. However, the Board did not mention anything about the 2nd applicant’s child-specific risk for being an illegitimate child of very tender age at the material time.
37. Thus, it is this court’s view that the Board’s consideration of the 2nd applicant’s case may not be comprehensive and could be flawed.
38. In the premises, this court is of the view that there are arguable grounds for the 2nd applicant’s intended judicial review and leave should be granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision concerning her own case.
39. As to the 1st applicant’s case, the Board’s assessment of the 1st applicant’s credibility may be flawed too. In paragraph 30 of the Board’s Decision, the Board stated that the 1st applicant “had been illegally remaining in Hong Kong for about 3 days and she raised a non-refoulement claim only after having been arrested by the police”, and the Board found that “Such intentional delay on the part of A1 is unfavorable to her credibility in general”.
40. However, according to the information as set out in paragraphs 27 to 29 of the Board’s Decision, the 1st applicant was about 5 months pregnant with the 2nd applicant when she illegally entered Hong Kong on 18 April 2019, and gave birth to the 2nd applicant on 14 August 2019. The Board rejected the 1st applicant’s explanation that she took the advice of her friend to take more rest to regain good health before surrendering herself to the Immigration Department.
41. It seems to this court that when the 1st applicant was 5 months pregnant, it may not be unreasonable for her to rest for a while first before lodging her non-refoulement claim, even though she had previous experience in lodging such a claim. Moreover, a 3 days’ delay might not be significant enough to justify a finding that the delay was damaging to the credibility of an illegal immigrant.
42. Although the Board did not rely only on the 1st applicant’s delay in making a non-refoulement claim to find her claim not credible, it is clear that the Board had taken this issue into consideration. Thus, the Board’s assessment of the 1st applicant’s overall credibility could still be flawed.
43. In view of the apparent errors on the part of the Board’s assessment on both the 1st and 2nd applicants’ cases as aforesaid, there are sufficient reasons for both of their cases to be reasonably arguable.
44. 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 it is reasonably arguable that the Board could be irrational in some of its findings as aforesaid. Hence, leave should be granted to both applicants to proceed with the intended judicial review.
Conclusion
45. For reasons aforesaid, leave is granted to the 1st and 2nd applicants to apply for judicial review in respect of the Board’s Decision.
46. The applicants are directed to issue an originating summons for the intended judicial review on or before 9 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Dated the 26th day of August 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 applicants/the applicants’ solicitors
on: 26/08/2026
Applicants’ 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: 26/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17177/20/9/5/V2547 & USM 17178/20/9/6/V2548
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1162-3/19 (formerly: RBCZ/10858-9/19) [T1S126]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] NCF denotes Non-refoulement Claim Form
[2] A1 denotes the 1st applicant
[3] Husband denotes the 1st applicant’s husband
[4] Boyfriend denotes the 1st applicant’s boyfriend
[5] A2 denotes the 2nd applicant
[6] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[7] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[8] Cruel, inhuman or degrading treatment or punishment.
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