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HCAL 1765/2023
[2026] HKCFI 3239
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1765 OF 2023
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BETWEEN
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Trinh Thi Luu |
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 “Director of Immigration” be added as the putative interested party.
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 3 October 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 13 September 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/HCAL001765_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection 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 8 June 2022 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board and “Director of Immigration Department” as the putative respondents and did not name any putative interested party in Form 86.
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. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.
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 her creditor named Tuan due to her inability to repay the loan obtained from the creditor.
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 3 October 2023. In her affirmation, the applicant merely stated that she would face a genuine and substantial risk of being subjected to torture or even killed by her creditor and his men since she was insolvent.
Discussion
11. First of all, the applicant’s alleged danger from her creditor 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 two oral hearings on 4 May 2023 and 15 August 2023 respectively. 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 questioned the applicant intensively to try to understand her case better. The first hearing was adjourned for the Board to clarify the entry and departure record of the applicant, as the applicant denied having been to Hong Kong in mid 2012.
16. The Board laid out its findings on the credibility of the applicant and her claims in paragraphs 29 to 32 of the Board’s Decision, and it is not necessary to repeat the same here.
17. In gist, the Board found multiple significant inconsistencies and implausibilities in the applicant’s claims. The Board did not accept the factual basis of the applicant’s claims.
18. Moreover, the Board found that, even if the applicant’s claims were accepted, her claim for non-refoulement protection would still fail.
19. Even on the applicant’s evidence, she encountered only one attack (as alleged in her written claim in her Non-refoulement Claim Form) or 2 attacks (as alleged in the oral hearings before the Board). However, the injuries she sustained were not serious. None of her family members was assaulted by her creditor throughout the years. The applicant had not heard about the creditor for 11 years (up to the time of the Board’s hearings) and she could not even be sure if the creditor was still living.
20. The Board found that the applicant’s dispute with her creditor was only a personal dispute arising from the applicant’s inability to repay a loan. There was no evidence of state acquiescence in the applicant’s dispute with the creditor. The applicant’s fear of the creditor was not for a Convention reason.
21. Further, the Board found that the applicant had never reported any of the attacks from the creditor to the police. The Board agreed with the Director’s finding that despite shortfalls, the Vietnamese government had taken steps to combat corruption and to protect its citizens. The Board was of the view that reasonable state protection was available to the applicant.
22. The Board had also laid out its full reasons in paragraphs 51 to 53 of the Board’s Decision for its conclusion that internal relocation in Vietnam was a viable option to the applicant.
23. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
24. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information 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.
25. 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.
26. 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
27. For reasons aforesaid, the Leave Application is dismissed.
Dated the 3rd 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 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/Handed to the applicant/the applicant’s solicitors on: 03/06/2026
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: 03/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 20447
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 341/22 (Formerly RBCZ 5000209/22) (T1I87)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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