Bui Khanh Huyen v. Torture Claims Appeal Board

HCAL 2480/2020

[2026] HKCFI 271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2480 OF 2020

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

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Vietnam who entered Hong Kong illegally on 17 June 2019 and surrendered to the Immigration Department on 19 June 2019 when she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by the Vietnamese authorities and/or security officers for suspecting her to be a member of or involved with the political party Viet Tan which was considered by the Vietnamese Government as an illegal party and a terrorist organization.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born in Thanh pho Thhai Binh, Thai Binh Province, Vietnam, and was raised in Hai Phong City when her family moved there shortly after her birth.

3.When she was small she saw some men came to her home claiming to be security officers looking for her father, and when they could not find him in the house, they beat her and her mother a few times before they left.

4.After leaving school she worked as a restaurant dish washer in her home district to make her living.

5.In 2003, she was told by her mother that her father had been arrested and sent to prison for supporting the Viet Tan, and that later in 2005 he died in the prison, and shortly thereafter some men claimed to be security officers came to her home accusing her mother of being also a Viet Tan supporter and beat her mother with wooden sticks, but left without arresting her mother.  

6.In 2015, her mother brought her and her elder sister to China where the Applicant got lost and separated from her mother and sister, and subsequently she met a Vietnamese man by the name of Tran who took her to Laos where he raped her and forced her to live with him that she subsequently gave birth to their daughter.

7.In 2018, Tran brought her and their daughter back to his home in Vietnam where she realized that he already had a wife who then drove her away but kept her daughter.

8.The Applicant then went to An Duong District to take shelter in a friend’s place, during which she suspected that she had been followed by some men whom she recognized to have previously come to her home looking for her father and beating her mother, and one night those men came to her home to ask for her mother’s whereabouts, and when she was unable to give them any information, they then beat her with wooden sticks and then left.       

9.As she was fearful that those men whom she suspected to be security officers would return to arrest her, and so on 16 June 2019 she departed Vietnam for China, and from there she sneaked into Hong Kong and reunited with her mother, and then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 September 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

10.By a Notice of Decision dated 30 October 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

11.In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Vietnamese authorities or security officers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that those men whom she claimed to be looking for her father or beating her mother were indeed security officers or from the Vietnamese authorities or that her father had indeed been arrested for supporting the Viet Tan other than hearsays or the Applicants’ own speculations, that even if these claims were true that there is no evidence that the Vietnamese authorities or security officers did have any adverse interests in her mother or in the Applicant or that there were any evidence of their involvement in the Viet Tan given that they had never been arrested and were able to leave the country without any difficulty and that the Applicant was also able to return to Vietnam without being arrested, and that in the absence of any official involvement that that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 97 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for anyone to locate her.

12.On 6 November 2019, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 22 October 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 27 November 2020, her appeal was dismissed by the Board which also confirmed the Director’s decision.

13.In its decision[1], the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted and rejected her claim of fear of harm from the Vietnamese authorities or security officers that caused her to leave her country to come to Hong Kong to seek non-refoulement protection, that there was no reliable evidence of the Applicant’s father being arrested and sent to prison for supporting the Viet Tan or of any adverse interests of the Vietnamese authorities in the Applicant or her mother other than some uncorroborated hearsays or the Applicant’s own speculations or suspicions and given the facts that they had never been arrested and were able to leave the country without any problem and that the Applicant was subsequently also able to return to Vietnam without being arrested and then departed again without difficulty that the Board concluded that the Applicant had failed to establish any real risk of facing any harm from anyone upon her return to Vietnam that her claim for non-refoulement protection failed on all applicable grounds.    

14.On 22 December 2020, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claim as before but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

16.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim as well as relevant COI as to the current political and security situations in her home country, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.              

17.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 13^th day of January 2026

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