Case Document

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HCAL 2335/2023

[2026] HKCFI 4725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2335 OF 2023

BETWEEN

	Nguyen Thi Mien	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 27 December 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 19 December 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL002335_2023_files/the_Board's_Decision.pdf

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 16 March 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 27 December 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.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, 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 held an oral hearing on 29 June 2023. The applicant was present at the 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 15 to 45 of the Board’s Decision, and it is not necessary to repeat the same here.

29.In gist, the Board found that the information/evidence given by the applicant were unreliable in material aspects of her case. The Board found that she was not a witness of truth. The claimed risks were based on the unreliable information/evidence provided by the applicant and the Board rejected them.

30.Moreover, the Board found that even if the information set out in the applicant’s Non-refoulement Claim Form were to be accepted, the Board would still dismiss her appeal/petition. The Board found that even on the applicant’s evidence, the applicant remained in her own home for about 2 more months after the creditor last threatened her that if she did not repay the loans in 2 days, she would be killed. The creditor did not even try to find her in her home after the last threat was made. The Board considered that the chance for the risk, as claimed by the applicant, to materialise was low. Moreover, internal relocation was a viable option for the applicant. The Board had laid out its reasons for such conclusion in paragraphs 48 to 55 of the Board’s Decision.

31.In terms of the applicant’s risks under the USM, the Board found nothing to show that the creditor was acting in official capacity. The applicant’s problem with her creditor was therefore a private dispute that had nothing to do with the Vietnamese government. The applicant’s case did not fall within the ambit of torture as defined under section 37U of the Immigration Ordinance. The applicant’s fear of her creditor was not related to any Convention reasons and did not fall within the realm of persecution risk either. The Board found that the applicant’s feared ill-treatment was unlikely to materialise.

32.Thus, the Board concluded that the applicant had not made out a case for non-refoulement on any of the available grounds under the USM.

33.The finding of facts relating to a non-refoulement claim, including the assessment of evidence 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 19^th day of August 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 19/08/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 19/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 20053 Director of Immigration Putative interested party’s ref. no.: QA T/C 2821/21(Formerly RBCZ 11265/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)