Case Document

100%Judiciary

HCAL 1730/2020

[2025] HKCFI 5928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1730 of 2020

BETWEEN
	Duong Thi Thanh Thuy	1^st Applicant
	Nguyen Ha Vy	2^nd Applicant
	Nguyen Minh Tu	3^rd Applicant
	Nguyen Minh Quan	4^th Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 1^st, 2^nd and 3^rd Applicants being present and 4^th Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1. Leave for the Applicants to apply for Judicial Review of the Board’s Decision be refused; and

2. Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd, 3^rd and 4^th applicants’ application a nullity.

Observations for the Applicants:

The application

1.The 1^st applicant (A1) is the mother of other applicants (“the mother”). A2 is her daughter, aged 10; A3 is her son, aged 8; and A4 is her son, aged 6. The mother is the guardian ad litem of A2, A3 and A4.

2.All applicants had lodged non-refoulement claims to the Director of Immigration (“the Director”), who had refused their claims. They appealed to the Torture Claims Appeal Board (“the Board”). A1, A2 and A3 issued Form 86 on 27 August 2020 for leave for judicial review of the Decision dated 5 August 2020 (“the Board’s 1^st Decision”). Subsequently, A4 also appealed to the Board. By Decision dated 6 July 2023 (“the Board’s 2^nd Decision”), the Board dismissed his appeal.

3.As the Board’s 2^nd Decision was issued after Form 86 had been issued, A1 applied for leave to join A4 as party to this action.

4.By virtue of Order 15, rule 4 of the Rules of the High Court (“RHC”)[1], this Court granted leave to A4 to join as a party in this action.

5.A1, A2 and A3 jointly apply for leave for judicial review of the Board’s 1^st Decision. A1, acting for A4 as his guardian ad litem, applies for leave for judicial review of the Board’s 2^nd Decision.

6.The applicants’ applications rely upon the facts of A1.

7.The applicants appeared before the Court on 24 November 2025.

8.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The cases of the mother, A2 & A3

9.A1 is a national of Indonesia. She is an illegal immigration, having sneaked into Hong Kong illegally on 15 May 2015. She was arrested. She lodged a non‑refoulement claim with the Director on the basis that, if refouled, she will be harmed or killed by her ex-boyfriend because she was unable to repay the money lent to her and she refused to marry him.

10.Details of the facts are set out in the Board’s 1^st Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001730_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

11.The Director considered the applicants’ claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.By way of the Director’s 1^st Decision, the Director refused their claims because they were unsubstantiated.

The Board’s 1^st Decision

13.A1, A2 and A3 appealed the Director’s 1^st Decision to the Board. On 13 August 2019, the Board conducted an oral hearing for their appeals. The mother had given oral evidence and answered the Board’s question.

14.Having considered the evidence, the Board made the findings below.

(1)  Her ex-boyfriend had never used violence on her or her family. Therefore, the possibility of being harmed or killed upon her return to Indonesia is very slim. [42]

(2)  There was no evidence to show that she was psychologically injured. [43]

(3)  There was no evidence that the state was involved. [53]

(4)  State protection will be available.[53]

(5)  Internal relocation is viable. [63]

15.It therefore dismissed their appeal and confirmed the Director’s 1^st Decision.

The Board’s 2^nd Decision

16.The Director rejected A4’s claim for the reason that his claim was unsubstantiated.

17.On behalf of A4, the mother lodged an appeal to the Board. The Board conducted an oral hearing on 2 September 2020 and 24 May 2023. The mother and A4’s father (“the father”) were present. The father had also given evidence before the Board. The Board had taken on the minor issue as raised by the Court of Appeal in Fabio and Others (Salaudin) CACV 32/2020 and Jasvir Singh & Others CAMP 88/2020 and Alaya and another CAMP 74/2020.[55]

18.Having considered the evidence, the Board had made the findings below;

(1)  The mother’s claim fails.

(2)  The father is also making his non-refoulement claim. He said if he failed, he would go back to Vietnam with the mother and the children. [38]-[39]

(3)  Vietnamese government provides education and health care for the children. It also provides job training for women. [101]

(4)  The family will have volunteer service in Vietnam for free health care, education and job training service. [105]

Application for leave to apply for judicial review

19.The applicants filed Form 86 on 27 August 2020 for leave to apply for judicial review of the Board’s Decision. The mother did not put forth any valid grounds in support of their application.

20.In the mother’s affirmation in support of their application, she did not raise any specific ground to challenge the Board’s 1^st Decision or the Board’s 2^nd Decision.

Discussion

21.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. The applicants appeared before me. I asked the mother is she wanted this Court to take into account of any specific child issues for her children. She said that they would have the same danger as she would have.

23.It is clear that the minors in this case had no legal representation before the Board. Insofar as A2 and A3 are concerned, the Board did not have separate consideration for them. However, in its 2^nd Decision in respect of A4, it had taken on board the minor issues in Vietnam. In my view, the Board’s consideration for A4 equally applies to A2 and A3. I therefore find no other minor specific issues for A2 and A3, which the Board failed to consider because of lack of legal representation for them.

24.The Board had considered A4’s situation separately. I can find no other child issue that the Board had not considered because of lack of legal representation for A4.

25.The mother has raised no valid reason for this Court to interfere with the Board’s 1^st Decision or the Board’s 2^nd Decision.

26.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

Disposition

27.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their joint application.

28.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the application of A2, A3 or A4 a nullity.

Dated the 17^th day of December 2025

(Annson CHEUNG)(Ms)
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 Applicants: If leave has been granted, the Applicants or the Applicants’ 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 to the Applicants on 17/12/2025 Duong Thi Thanh Thuy, Nguyen Ha Vy, Nguyen Miah Tu and Nguyen Minh Quan Applicants’ ref. no: Nil		Sent 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 17/12/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 16793 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1593-95/18 (formerly RBCZ 10240-42/18)(T8I80) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Joinder of parties (O. 15, r. 4)

(1)  Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where—

(a)  if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and

(b)  all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.

Cites 5 cases

Cases cited in this judgment

Duong Thi Thanh Thuy and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

[2025] HKCFI 5928

High Court CFI18 Dec 2025

Nupur Mst v. Director of Immigration

Fabio Arlyn Timogan and Others v. Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 32/2020