Nguyen Lan Huong and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2548/2025

[2026] HKCFI 2986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2548 of 2025

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 Applicant being absent in open court;

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

1.  Leave 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 daughter’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, her daughter, born on 17 February 1994, aged 32 (“the daughter”). They are illegal immigrants. The daughter suffered from meningitis when she was a baby and is mentally disabled. The mother acts as the next friend for the daughter.

2.This is the applicants’ subsequent claim for non-refoulement. The Director of Immigration (“the Director”) granted leave to the applicants to lodge their subsequent claims, which were considered jointly. [12] & [13]

3.By Notice of Decision dated 17 July 2025 (“the Director’s Decision”), the Director refused their subsequent claim application. They appealed to the Torture Claims Appeal Board (“the Board”). The Board had asked the Director of Legal Aid (“DLA”) to consider granting a duty lawyer for the daughter. DLA had considered the request, but for the reason that there is no merit in her application, refused assigning a duty lawyer for the daughter.

4.By Decision dated 7 November 2025 (“the Board’s Decision”), the Board dismissed their appeal.

5.The applicants jointly apply for leave to apply for judicial review of the Board’s Decision.

6.The applicants did not ask for a hearing.

7.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

8.The applicants are nationals of Vietnam.

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

10.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/HCAL002548_2025_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 Decision, the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because it was unsubstantiated.

The Board’s Decision

13.The applicants appealed the Director’s Decision to the Board. On 20 October 2025, the Board conducted an oral hearing for their appeal. The mother had given evidence and answered the Board’s questions.

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

(1)  The mother had given inconsistent evidence before the Board. [92]

(2)  There is not a real risk that the creditors intend to inflict proscribed harm on the applicants, and where there is adequate police protection accessible, it is not necessary to consider the question of internal relocation. However, the Board agreed with the Director’s finding that they may relocate to Danang or Ho Chi Minh City for safety. [102]

(3)  Insofar as the daughter is concerned, the Board accepted that her mental condition is stable but unlikely to improve. In relation to her heart condition and her diabetes, there is no evidence to suggest that there will not be medical treatment available in Vietnam if they return to Vietnam. Therefore, the Board found that the applicants should have access to adequate health services in Vietnam. [108]

(4)  The Board further found that there will not be imminent health risk resulting in intense suffering or to a significant reduction in life expectancy if they are refouled to Vietnam. [111]

(5)  There is no compelling evidence to suggest that the daughter cannot be comforted and assured as part of returning to Vietnam, or that the process of returning would give rise to a real risk of proscribed harm to the daughter. [112]

(6)  There is no evidence to show that the daughter would face a real risk of harm if she returns to Vietnam with the mother. [114]

15.For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

16.The applicants filed Form 86 on 17 November 2025 for leave to apply for judicial review of the Board’s Decision.

17.In support of their application, the mother has raised no ground to challenge the Board’s Decision. She has only attached a copy of the Board’s Decision to her affirmation.

DISCUSSION

18.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).

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

20.It is apparent that the applicants were 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 minor-specific issues, which were not brought to the Board’s attention because of lack of legal representation for the daughter, and to have separate consideration of the specific issues as the minors are more vulnerable to the applicable risks than the parent.

21.The Court of Appeal in Re: Jasvir Singh & Ors [2021]HKCA 53 further held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

22.The Board had asked DLA to provide legal service for the daughter. DLA had assessed the case and decided that there is no merit in her case and refused to assign a duty lawyer to act for her before the Board.

23.The Board had considered the daughter’s situations separately.

24.In my view, the Board had considered the application with advanced standards of fairness, and there is no minor specific issue, which was not considered by the Board because of lack of legal representation before the Board.

25.Therefore, I consider that the applicants do not have any reasonable prospect of success in their intended judicial review of the Board’s Decision.

26.The applicants 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 Decision. 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 daughter’s application a nullity.

Dated the 10^th day of June 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