Nguyen Thi Hoa an v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1620/2023 on BabelCite. This High Court CFI judgment was delivered on 10 June 2026.
1. By way of Form 86 dated and filed on 12 September 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 5 September 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 8 cases
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HCAL 1620/2023 [2026] HKCFI 3397 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1620 OF 2023
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 12 September 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 5 September 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 July 2022 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the first putative respondent and the Director as the second putative respondent, and did not name any putative interested party. 4.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party. 5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party. The applicant’s case 7.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or killed by a moneylender due to her inability to repay an outstanding loan. Disposal on paper 9.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 10.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 11.The applicant annexed a document with the title “Grounds on which relief is sought” to her Form 86. 12.However, the grounds contained therein were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the said grounds to make the Leave Application, this court will still deal with the grounds as discussed below. 13.The applicant did not advance any grounds for the intended judicial review in her supporting affirmation dated 12 September 2023. Discussion 14.As mentioned, all the grounds contained in the document with the title “Grounds on which relief is sought” are very general. In the said document, there are a total of 6 paragraphs listed under the heading “Grounds”. 15.First of all, some of the grounds listed in the said document were directed at the Director. However, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision. 16.Paragraphs 2 and 5 in the said document were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can simply be ignored. 17.In paragraph 1, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in that paragraph either. 18.In any event, the Board did assess the applicant’s risk of right to life. However, the Board found no evidence to substantiate that the applicant would face a real risk of being arbitrarily deprived of her life upon refoulement to Vietnam. 19.In paragraph 3, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take her personal background and experience into account. However, the applicant did not state which aspects of her personal background and experience had not been taken into account by the Board. 20.In paragraph 4 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by her, and unreasonably required her to respond to questions that she was not in a position to offer any response. This accusation lacks any particulars in support. The applicant did not state which explanations she provided were not accepted by the Board and which questions she was not in a position to offer any response. 21.In paragraph 6, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational. 22.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 23.Thus, none of the matters that were contained in the document with the title “Grounds on which relief is sought” could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case. 24.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 25.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 26.In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 6 April 2023. The applicant was absent but was given a chance to attend another hearing on 25 August 2023. The applicant was present at the second hearing and was thus given the opportunity to present her case to the Board in person. 27.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. 28.The Board laid out its assessment of the applicant’s evidence in paragraphs 42 to 48 of the Board’s Decision. In gist, the Board did not accept the applicant’s account. The Board found multiple and significant inconsistencies between the applicant’s account given in her written claims and her testimony at the Board’s hearing. Moreover, the Board found that, even if the applicant’s account were accepted, the Board still did not believe that the applicant came to Hong Kong for fear of being harmed or killed by the creditor. The Board considered that the applicant’s risk, if any, from the creditor was not as serious or imminent as claimed. 29.In any event, the Board found that the applicant’s injuries suffered as a result of the assaults by the creditor were not serious and did not attain a minimum level of severity. The moneylender did not have the real intention to serious harm or kill the applicant, as the moneylender and her men could have done so, but they did not. Her dispute with the moneylender was purely private in nature. There was no evidence of state acquiescence, and any ill-treatment she might face upon refoulement would not be due to a Convention reason. 30.With regards to state protection, the Board found from extensive COI that despite corruption in the police and the widespread existence of illegal moneylending in Vietnam, steps were being taken by the Vietnamese government to combat corruption, improve police efficiency and crack down illegal loan shark activities. The Board found that reasonably sufficient state protection was available to the applicant in her country. 31.Moreover, the Board found the applicant’s assertion that the creditor could locate her anywhere in the country as her own speculation without evidence in support. The Board had given its full reasons in paragraphs 131 to 138 of the Board’s Decision for its finding that internal relocation to another part of Vietnam to avoid any perceived risk from her creditor would not be unduly harsh or unreasonable for the applicant. 32.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 33.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 34.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 35.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 36.For reasons aforesaid, the Leave Application is dismissed. Dated the 10th 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
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Cases cited in this judgment