Case Document

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HCAL 916/2020

[2025] HKCFI 3538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 916 OF 2020

BETWEEN
	Nguyen Thi Huong	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, 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 18 May 2020, 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 7 May 2020 (“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/2020/HCAL000916_2020_files/the_Board's_Decision.pdf

2.The Board found that the applicant did not face any real risk of torture, deprivation of life, cruel, inhuman or degrading treatment or punishment, or persecution if refouled to Vietnam. Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 22 February 2019, which rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”).

Amendment

3.The applicant wrongly named the Board as the putative interested party in Form 86, when the Director should be so named. This court therefore makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

4.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.

5.In sum, the applicant claimed for non-refoulement protection because she feared being harmed or killed by a loan shark and/or his subordinates for a loan in the amount of 700 million Vietnamese Dong borrowed by her husband if she were to return to Vietnam.

Oral hearing

6.The applicant requested for an oral hearing of the Leave Application. However, she was absent at the hearing on 19 June 2025.

7.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn her request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

8.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

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 provide any ground for judicial review in Form 86, nor in her supporting affirmation dated 18 May 2020. The applicant merely stated in her affirmation that her husband was a serious drug addict who used to borrow money to buy drugs. One day her husband told her that he could not repay the loan he borrowed to buy drugs, and her husband gradually lost contact with her. When her husband’s creditor could not locate him, the creditor asked her to repay the loan for him. Since she could not repay the loan, the creditor used abusive language on her, beat her with wooden stick and slapped her causing injury to her. She was very scared and hence fled from Vietnam to Hong Kong to seek refuge.

Discussion

11.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).

12.Thus, even though the applicant has failed to advance any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

13.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 12 June 2019. Hence, the applicant had a chance to present her case to the Board in person.

14.Having considered the applicant’s evidence, the Board found that the applicant’s “loan shark” story unbelievable. Even if there were such a creditor, the Board found that the applicant’s assertion that the creditor could locate her anywhere in Vietnam contradicting her evidence that the creditor could not locate her husband.

15.The Board further found that the creditor was not a public officer and there was no evidence that the state would be unable or unwilling to protect her. Moreover, the injuries allegedly sustained by the applicant were minor and did not reach a minimum level of severity.

16.The Board also found that the applicant, being a young and able-bodied person with more than 10 years of work experience as a farmer and a labourer, could safely relocate to other parts of Vietnam such as Ho Chi Minh City to avoid the threat. There was no evidence to support the allegation that the creditor had the kind of influence that would allow him to find the applicant anywhere in Vietnam.

17.Thus, the applicant’s alleged danger had been considered by the Board and the Board found that there were no substantial grounds for believing that the applicant would be subjected to any of the proscribed forms of harm if she were to be sent back to Vietnam. The Board also found that state protection was available and internal relocation was viable for the applicant.

18.The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

19.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.

20.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

21.For reasons aforesaid, the Leave Application is dismissed.

Dated the 12^th day of August 2025

( Irene LEE )
for Registrar, High Court

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:
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)).		Sent/Handed to the applicant/the applicant’s solicitors on: 12 August 2025 Applicant’s ref. no: Nil		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: 12 August 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 15632/19/2/151/V2259 Director of Immigration Putative interested party’s ref. no.: QA T/C 11/19 (Formerly RBCZ 161/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)