Nguyen Thi Thuong and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1466/2021

[2026] HKCFI 2354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1466 of 2021

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 Applicants being absent in open court;

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

1.  Leave for the Applicants to apply for Judicial Review be refused; and

2.  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 2^nd Applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, aged 4 (“the daughter”). The mother acts as the next friend of the daughter. The mother gave birth to her daughter in Hong Kong. They are illegal immigrants. The daughter’s claim relies on the facts of the mother’s claim.

2.The mother applied to the Director of Immigration (“the Director”) for non‑refoulement protection. By Notice of Decision dated 22 February 2021 (“the Director’s Decision on the mother”) the Director refused her claim. She appealed to the Torture Claims Appeal Board (“the Board”). By Decision dated 2 September 2021 (“the Board’s Decision on the mother”), the Board dismissed her appeal. Shortly after her appeal, she gave birth to the daughter.

3.Acting as the next friend of the daughter, the mother applied to the Director for non-refoulement protection for the daughter. By Notice of Decision dated 28 April 2022 (“the Director’s Decision on the daughter”), the Director refused the daughter’s claim. Acting by the mother as the next friend, the daughter appealed to the Board. By Decision dated 28 March 2023 (“the Board’s Decision on the daughter”), the Board dismissed the daughter’s appeal.

4.The mother filed Form 86 to apply for leave for judicial review of the Board’s Decision on the mother. Later, she applied for leave to join the daughter as a party in the action.

5.The Court granted leave for the daughter to join as the 2^nd applicant for leave for judicial review of the Board’s Decision on the daughter.

6.The Director’s Decision on the mother and the Director’s Decision on the daughter are collectively called (“the Director’s Decisions”). The Board’s Decision on the mother and the Board’s Decision on the daughter are collectively called (“the Board’s Decisions”)

7.The applicants therefore jointly apply for leave to apply for judicial review of the Board’s Decisions.

8.The Court fixed a date for the applicants to appear before it. However, they were absent at the hearing on 13 April 2026. I shall deal with their application on the papers.

9.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                                                                                     

10.The applicants are nationals of Vietnam.

11.The mother lodged a non-refoulement claim, on the basis that, if refouled, she will be harmed or killed by her creditor because she was unable to repay her loan.

12.Details of the facts are set out in the Board’s Decision on the mother. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001466_2021_files/1st_Board's_Decision.pdf

The Director’s Decision on the mother

13.The Director considered the mother’s claim in relation to the following risks (“the applicable 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”).

14.The Director dismissed her claim on all applicable risks because it was unsubstantiated.

The Board’s Decision on the mother

15.The mother appealed to the Board. On 20 August 2021, the Board conducted an oral hearing for the mother’s appeal. The mother had given evidence and answered the Board’s questions.

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

(1)  For reasons stated in paragraphs 43-50, the Board found the applicant’s loan incredible, unreliable and/or implausible. [44]

(2)  The applicant therefore failed to establish that she will face any real risk of harm if she returns to Vietnam. [54]

(3)  The Board found it unnecessary to consider internal relocation as it did not believe her evidence on the core facts of her claim. [71]

17.For the reasons above, the Board dismissed the mother’s appeal and confirmed the Director’s Decision on the mother.

The Director’s Decision on the daughter

18.The Director considered the daughter’s claim on the applicable risks and dismissed her claim because it was unsubstantiated. Details of the facts relating to the daughter are set out in the Board’s Decision on the daughter. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001466_2021_files/2nd_Board's_Decision.pdf

The Board’s Decision on the daughter

19.The daughter appealed to the Board. The mother and the daughter attended the hearing before the adjudicator on 6 January 2023. The mother had given oral evidence for the daughter and answered the Board’s questions. Having considered the evidence, the Board made the findings below.

(1)  The findings in respect of the mother will not change despite the additional information relating to the daughter. The daughter will not be harmed or killed by the mother’s creditor or his subordinates and the mother may relocate to other parts of Vietnam together with the daughter. [53]

(2)  The mother confirmed that the daughter will not face stigmatization or discrimination as a child of an unmarried mother in Vietnam. [4] [56]

(3)  The mother may seek help from the government or non-government organizations in Vietnam for the daughter. [59]

(4)  Internal relocation of the mother and the daughter is viable if they return to Vietnam. [89]

20.For the reasons above, the Board dismissed the daughter’s appeal and confirmed the Director’s Decision on the daughter.

Application for leave to apply for judicial review

21.By Form 86 on 21 October 2021, the applicants applied for leave to apply for judicial review of the Board’s Decisions.

22.The mother has not raised any specific ground to challenge the Board’s Decision on the mother. Nor did she raise any specific ground to challenge the Board’s Decision on the daughter.

DISCUSSION

23.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).

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

25.It is apparent that the Board had born in mind the decisions of 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. The adjudicator had raised child specific issues with the mother during the hearing for the daughter’s appeal.

26.The mother has not raised any specific reason to challenge the Board’s Decision on the mother. The daughter’s claim was separately considered by the Director, and on appeal, by the Board. Nor has the mother raised any specific reason to challenge the Board’s Decision on the daughter.

27.I am satisfied that the Board had conducted the hearing with advanced standards of fairness for this case and there is no error in law or procedural impropriety in the hearing, and the Board’s findings on the applicants are not Wednesbury unreasonable.

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

DISPOSITION

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

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

Dated the 29^th day of April 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