Doan Thi Mung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1204/2020

[2025] HKCFI 3495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1204 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent at the hearing in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the Torture Claims Appeal Board /  Non-refoulement Claims Petition Office be named as the Putative Respondent; and

b.   the Director of Immigration be named as the Putative Interested Party.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 16 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 5 June 2020 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named both the Board and the Director of Immigration (the “Director”) as proposed respondents.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on my own motion.

3.An oral hearing was requested by the Applicant.  It took place before me on 22 July 2025 (the “Hearing”) and the Applicant was absent.

Background

4.The Applicant’s background, the basis and history of her claim and the arguments she advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat herein.  The hyperlink to the Board’s Decision is included below[1] for reference.  In short, the Applicant claims that she would be subject to serious harm if she returns to Vietnam because she had failed to repay a loan from a creditor (the “Creditor”) who is believed by the Applicant to have connections with the triad. 

Discussion

5.It is trite that:-

(1)  Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is primarily within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

(3)  Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23).

6.In the Form 86, the Applicant did not provide any ground in support of the Leave Application.  In her supporting affirmation, she merely made a general request to review the Board’s Decision.

7.Notwithstanding the absence of the Applicant, I have considered the Leave Application on paper.  Having reviewed the Board’s Decision with anxious scrutiny, I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters. 

8.The sources of the Applicant’s purported fear are the Creditor and the triads who are not public officials. The conflict between the Applicant and her adversaries is essentially a private financial dispute.

9.In my judgment, the Board was plainly correct to find that the Applicant faced no substantial risk of ill-treatment of the requisite level of severity, given that on her own evidence, she had never suffered any physical injury from the Creditor even though the Creditor lived in the same district as the Applicant (§§30-34-72-73).

10.The Applicant’s contention that she will not have protection in Vietnam or that she cannot relocate to other parts of the country is a bare assertion not supported by credible evidence.  Having considered relevant Country of Origin information, the Board was entitled to find that state protection would be available in any event notwithstanding shortcomings in the government’s efforts to combat corruption (§§48-62), especially when there was no evidence that the Applicant was targeted by the Vietnam government or that the Creditor had any connection with the police in Vietnam (§§83-85).

11.The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 

12.In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

Conclusion

13.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 13^th day of August 2025

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

Form CALL-1