Khuc Thi Mai Trang Acting As Guardian Ad Litem of Hoang Bui Duc Hieu Simon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1298/2025

[2026] HKCFI 1204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1298 of 2025

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 K.W. Lung:

1.  The extension of time for the application for Judicial Review be refused;

2.  Leave to apply for Judicial Review be dismissed; and

3.  Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The mother (“the mother”) is acting as the guardian of the applicant, her son, aged 6 (“the son”). They are illegal immigrants. The mother gave birth to him son in Hong Kong.

2.The applicant applies for leave to apply for judicial review of the Decision dated 7 September 2021 of the Torture Claims Appeal Board (“the Board’s Decision”). His application relies upon the facts of the mother. His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 7 December 2021. His application was filed on 6 June 2025, which is late for more than 3 years and 6 months. This issue will be dealt with below.

3.The mother had lodged her non-refoulement claim with the Director previously. The Director rejected her claim. She appealed to the Board. The Board dismissed her appeal. She applied to the Court of First Instance for leave for judicial review of the Board. The Court of First Instance refused her application. She appealed to the Court of Appeal, which dismissed her appeal.

4.The applicant did not ask for a hearing.

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

The applicants

6.The applicant is a national of Vietnam.

7.The applicant lodged a non-refoulement claim. He relies upon the facts of the mother, who claimed that, if refouled, she will be harmed or killed by her creditor because she was unable to settle her debt in Vietnam.

8.   Details of the facts are set out in the Board’s Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001298_2025_files/the_Board's_Decision.pdf

The Director’s Decision

9.The Director considered the applicant’s 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”).

10.By way of the Director’s Decision dated 12 April 2021 (“the Director’s Decision”), the Director, based upon the mother’s claim, which he had rejected previously, refused his claim.

The Board’s Decision

11.The applicants appealed the Director’s Decision to the Board.  On 26 August 2021, the Board conducted an oral hearing for his appeal. The mother represented the applicant. On his behalf, the mother had given evidence and answered the Board’s questions.

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

(1)   The Board had rejected the mother’s claim on the facts of her claim. The Board held that the mother’s claim was a fabrication and it gave no credence to her claim. [66]

(2)   As the applicant’s claim relies on the mother’s claim. Insofar as the facts are concerned, his claim on the facts in support was not accepted. [67]

(3)   Insofar as the mother’s fear that the parents will not accept the applicant, the Board considered it a mere fabrication. [89]

(4)   State protection will be available to the applicant if he returns to Vietnam with the mother. [97]

(5)   The applicant did not claim there is consistent pattern of gross, flagrant or mass violations of human rights in Vietnam. [107]

(6)   The mother may relocate internally in Vietnam with the applicant. [133]

13.For the reasons above, the Board dismissed his appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

14.The applicant filed Form 86 on 6 June 2025 for leave to apply for judicial review of the Board’s Decision.

15.In support of the application, the mother has raised the grounds below to challenge the Board’s Decision.

(1)   The Board’s Decision is wrong in that it had not considered BOR 2 risk and the adjudicator acted unreasonably by asking her to answer questions that she was not in a position to offer any response.

(2)   The Board had relied too much on the country of origin information without considering her personal background and experience.

(3)   The son is having autism and he is being treated in Hong Kong. The mother considered that most doctors and medical staff in Vietnam are not as professional, dedicated or highly qualified as those in Hong Kong.

(4)   They may be harmed by the creditor.

DISCUSSION

16.As mentioned in paragraph 2, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the court has to consider, inter alia, the prospect of success of the intended application. I shall consider the merits of the applicant’s case.

17.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).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.It is apparent that the applicant was not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation for the minors.

20.The Board had considered the child’s situation separately. The fact that the son is suffering from autism and Hong Kong may provide better medical care are not valid reasons to challenge the Board’s Decision because these issues are not applicable to the applicable risks. I cannot see that there is any other child specific issue, which was not brought to the Board’s consideration because of lack of legal representation.

21.Therefore, those reasons under paragraph 15 do not constitute valid reasons to challenge the Board’s Decision.

22.The applicant fails to show that there is any realistic prospect of success in his proposed judicial review.

DISPOSITION

23.I refuse to extend time for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

24.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering his application a nullity.

Dated the 11^th day of March 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