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HCAL 1925/2023
[2026] HKCFI 2816
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1925 OF 2023
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BETWEEN
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Bui Thi Thu |
Applicant |
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and |
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Director of Immigration |
1st Putative |
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Respondent |
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Torture Claims Appeal Board |
2nd 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 2nd putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decisions in respect of which relief is sought be amended to “The decision of the Director of Immigration dated 30 November 2021 and the decision of the Torture Claims Appeal Board dated 16 October 2023”.
2. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.
3. The applicant’s application for leave to apply for judicial review in respect of the decision of the Director of Immigration dated 30 November 2021 be dismissed.
4. The applicant’s application for leave to apply for judicial review in respect of the decision of the Torture Claims Appeal Board dated 16 October 2023 be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 24 October 2023 and filed on 25 October 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-
(1) The decision of the Director of Immigration (“the Director”) dated 30 November 2021 (“the Director’s Decision”); and
(2) The decision of the Adjudicator dated 16 October 2023.
2. The decision of the Adjudicator dated 16 October 2023 (“the Board’s Decision”) was in fact made by the Torture Claims Appeal Board (“the Board”) in respect of the applicant’s appeal/petition against the Director’s Decision.
3. Only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. Thus, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).
4. The applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is therefore dismissed.
5. This court will further consider the Leave Application in respect of the Board’s Decision as discussed below.
6. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001925_2023_files/the_Board's_Decision.pdf
7. In the Board’s Decision, the Board found that the applicant’s appeal/petition failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
Amendments
8. The applicant named “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the 2nd putative respondent in Form 86. In fact, the Adjudicator was determining the applicant’s appeal/petition in his capacity as a member of the Board. The Board should therefore be the 2nd putative respondent.
9. 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.
10. Thus, on this court’s own motion, the name of the 2nd putative respondent is amended to “Torture Claims Appeal Board”.
11. Moreover, the applicant did not name any putative interested party in Form 86, when the Director should be so named. Hence, the Director is added as the putative interested party on this court’s own motion.
12. As aforesaid, the applicant is seeking leave to apply for judicial review in respect of the Director’s Decision and the Board’s Decision in the Leave Application. Hence, this court makes an order on its own motion to amend the decisions in respect of which relief is sought accordingly.
The applicant’s case
13. 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.
14. In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or killed by her creditor Luu Van Huynh and his underlings due to her inability to repay her loan.
Withdrawal of the Leave Application
15. Before the Leave Application was dealt with, the Director informed this court by letter dated 8 May 2026 that the applicant had written a letter dated 5 May 2026 to withdraw the Leave Application. In the applicant’s said letter, she stated that she wanted to return to Vietnam, and she asked the Immigration Department to arrange an air ticket for her as she needed to seek medical treatment. However, she did not state that her problems in her country had been resolved, or that it was safe for her to go back.
16. There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application. It is therefore not necessary for this court to afford her any oral hearing for the Leave Application even though she had requested one before.
17. The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
18. Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large by granting leave to the applicant to withdraw the Leave Application. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.
Grounds for judicial review
19. 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).
20. The applicant annexed a document to her Form 86 with the title “Grounds on which Relief is sought”. Many other applicants in similar applications had in fact used the contents of this document and it is like a template for them.
Discussion
21. First of all, some of the grounds stated in the document with the title “Grounds on which Relief is sought” were directed at the Director. As aforesaid, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review. The Director’s Decision is therefore dismissed and it is not necessary to deal with the grounds against the Director’s Decision anymore.
22. Hence, this court will consider only those grounds directed at the Board in respect of the Board’s Decision.
23. The said document contained a total of 11 paragraphs. Paragraphs 1 and 2 only stated that the applicant was the aggrieved party. Paragraph 10 only mentioned that the Board’s Decision contained all the details of the applicant’s claim. In paragraph 11, the applicant was just asking this court to grant her leave. Thus, the above paragraphs are not grounds at all.
24. Paragraphs 5 and 7 of the said document were directed at the Director and can be simply ignored. The remaining grounds that were advanced against the Board’s Decision in the other paragraphs were all very general and without any particulars related to the applicant’s own case. They only contained “keys words” such as the Board’s Decision was wrong, unreasonable and unfair as required by the Wednesbury test, the Board was procedurally improper and unfair, the Board had placed too much reliance on country of origin information (“COI”), etc. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 4 of the said document either.
25. In any event, the Board did assess the applicant’s risk of right to life. The Board found that the applicant had failed to establish that her right to life would be violated upon her return to Vietnam.
26. The applicant also alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by her, and unreasonably required her to respond to questions. This accusation lacks any particulars in support. The applicant did not state which explanations she provided were not accepted by the Board and which questions she was required to respond unreasonably.
27. In any event, this allegation is plainly untrue as the applicant did not make any oral submission at the hearing before the Board on 20 September 2023, save that she requested to remain in Hong Kong (see paragraph 30 of the Board’s Decision).
28. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
29. Thus, none of the grounds that were contained in the said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case, or plainly unfounded.
30. 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).
31. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
32. As aforesaid, the applicant was afforded an oral hearing before the Board on 20 September 2023. Although the applicant was present at the hearing and was given the chance to present her case to the Board in person, the applicant only adopted the materials previously submitted by her in her non-refoulement claim and did not make any oral submission except to ask to remain in Hong Kong.
33. As can be seen from the Board’s Decision, the Board gave detailed analysis and reasoning for its conclusion that the applicant was not at a real risk of ill-treatment, torture, arbitrary deprivation of life and persecution. The Board found that the applicant’s claim only arose from her inability to repay a personal loan. There was no element of state acquiescence and her fear of the creditor was not for a Convention reason. The ill-treatment she received in the past did not reach a minimum level of severity and there was no evidence to show that the creditor had a real intention to seriously harm or kill her.
34. The Board also found from COI that reasonable state protection would be available to her upon her return to Vietnam. Moreover, the Board had laid out its full reasons in paragraphs 72 to 79 of the Board’s Decision for finding that it would be viable and reasonable for the applicant to relocate to another part of Vietnam to avoid any perceived harm from her creditor, which was localised.
35. Thus, the Board concluded that the applicant had failed to establish a case for non-refoulement protection in Hong Kong.
36. The finding of facts including the assessment of evidence, COI and risk of harm was primarily within the realm of the Board in dealing with her appeal/petition. The applicant’s alleged danger in her home country had been duly assessed by the Board. The Board was entitled to reach its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
37. 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.
38. 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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.
Conclusion
39. For reasons aforesaid, the applicant’s application to withdraw the Leave Application is refused and the Leave Application in respect of both the Director’s Decision and the Board’s Decision is dismissed.
Dated the 20th day of May 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: 20/05/2026
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: 20/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
2nd putative respondent’s ref. no.:
USM 19434
Director of Immigration
1st putative respondent and putative interested party’s ref. no.:
QA T/C 1666/21 (Formerly RBCZ 243/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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