Nguyen Thi Hong Le v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1994/2023

[2026] HKCFI 3923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1994 of 2023

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 Andrew Li:

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 6 January 2023 of the Torture Claims Appeal Board (“the Board’s Decision”).

2.The applicant did not ask for a hearing.

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

The applicant

4.The applicant is a national of Vietnam. She was an illegal immigrant for the reason that she had entered Hong Kong illegally on 20 June 2021. She was arrested by the police for illegally remaining in Hong Kong on 28 July 2021. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her creditors.

5.Details of her claim are set out in the Board’s Decision. See hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001994_2023_files/the_Board's_Decision.pdf

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(3)  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

(4)  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”).

7.By way of the Notice of Decision dated 18 March 2022 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks on the basis that it was unsubstantiated.

The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board. On 16 August 2022, the Board conducted an oral hearing for her. She had given evidence and answered the Board’s questions.

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

(1)  The Board accepted the applicant may have had some loans, though the amount of any loans was not established to the satisfaction of the Board. [111]

(2)  Even though the applicant claimed that three moneylenders, namely, Vu Van Tuan, M Son and Khoa, had attacked her and her family at her home area, she fled to her apartment in Lang Son city, where she remained safe for six months before crossing into Mainland China, the Board made the remark that as Lang Song city is no more than 15 kilometers from the Friendship border crossing where the applicant alleged that the loans were made, it was remarkable that the applicant would choose to return to live in the area where the moneylenders operated. She also claimed to have crossed into China and stayed in Ping Xiang city where she worked openly as an agent for fruit sellers. This was from October 2020 to September 2021. Ping Xiang is the largest town close to the Friendship border post on the China side. Instead of distancing herself from the moneylenders, the Board found it incredible that she would choose to spend almost a year and a half in the two towns closest to where the moneylenders operated. This suggested to the Board that the applicant was not particularly concerned with her own safety, since she lived near to where the moneylenders operated and continued to work in the fruit industry. [118 – 120]   

(3)  Internal relocation is viable. [128]

10.For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed the Form 86 dated 7 November 2023 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has not raised any specific grounds to challenge the Board’s Decision under the Form 86. She merely was seeking an order of certiorari to quash the decision of the Board in refusing the applicant’s appeal / petition against the Director’s Decision.

13.Similarly, in the applicant’s affirmation in support of the leave application, she did not specify any grounds to challenge the Board’s Decision. She merely stated that if she were to be refouled to Vietnam, her life would be in danger because of her creditors and their subordinates could have inflicted more serious harm had they intended to do.

DISCUSSION

14.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 applicant’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.In my view, there is nothing raised under the Form 86 or in the supporting affirmation which can constitute to valid grounds to challenge the Board’s Decision. I also cannot find any errors of law or procedural unfairness or irrationality in the Board’s Decision.  

18.In my view, the applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated 14 July 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