Case Document

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HCAL 3622/2019

[2026] HKCFI 4777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3622 OF 2019

BETWEEN

	Dao Thi The	1^st Applicant
	Pham Manh Quyen (a minor)	2^nd Applicant
	by Dao Thi The, his next friend
	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 applicants in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, “Dao Thi The” be named as the 1^st applicant, the name of the 2^nd applicant be amended to “Pham Manh Quyen (a minor) by Dao Thi The, his next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

2.  Leave granted to both the 1^st the 2^nd applicants to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 10 October 2019.

3.  The 1^st and 2^nd applicants are directed to issue an originating summons for the intended judicial review on or before 2 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicants:

The Leave Application

1.By way of Form 86 dated and filed on 4 December 2019, the applicants 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 10 October 2019 (“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/2019/HCAL003622_2019_files/the_Board's_Decision.pdf

2.The Board found that the applicants’ claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism. Hence, the Board dismissed the applicants’ appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 June 2018 and affirmed the same, which rejected the applicants’ non-refoulement claims.

Amendments

3.In Form 86, the applicants’ names were not stated properly. Thus, on this court’s own motion, “Dao Thi The” is named as the 1^st applicant, and the other applicant, “Master PHAM MANH QUYEN, who is the 1^st applicant’s son and a minor, is named the 2^nd applicant. The 2^nd applicant is represented by the 1^st applicant as his next friend and his name is amended to “Pham Manh Quyen (a minor) by Dao Thi The, his next friend” on this court’s own motion.

4.The applicants named both the Board and the Director as the putative respondents and the putative interested parties in Form 86. In fact, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party.

5.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

Legal representation of the 2^nd applicant

6.The 2^nd applicant is a minor born in Hong Kong on 22 August 2016 and is represented by the 1^st applicant in the Leave Application.

7.The 1^st applicant applied for legal aid for the 2^nd applicant, but the application was refused by the Director of Legal Aid on 2 February 2026.

8.At the hearing before this court on 13 August 2026, the 1^st applicant confirmed that she would not engage a private lawyer to represent the 2^nd applicant.

9.As the 2^nd applicant was legally represented before the Director, and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation for the 2^nd applicant in the Leave Application was a mere irregularity and it would not prejudice the 2^nd applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application.

The applicants’ case

10.It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

11.As summarised by the Board in paragraphs 2 to 8 of the Board’s Decision, the 1^st applicant’s case as presented in her written representations, her Non-refoulement Claim Form, the Record of Interview and her Notice of Appeal/Petition was that she feared being harmed or killed by a money lender named Thanh, as she could not repay a loan of 1,500 million Vietnamese Dong (“VND”) obtained from Thanh.

12.The 1^st applicant’s case presented to the Board at the Board’s hearing, as laid out in paragraphs 30 to 31 of the Board’s Decision, was that she borrowed VND 1,000 million from a bank, VND 1,000 million from a lender Nguyen Van Thanh (“1^st Lender”), and VND 1,000 million from another lender Le Duc Thanh (2^nd Lender”), in 2011. The 1^st applicant claimed that she defaulted the loan repayment since about end-2013 and that the 1^st and 2^nd Lenders sent subordinates to collect debts since early 2014.

13.In either account, the applicant claimed that she had been beaten by the lender(s) and was threatened that she would be killed if she could not repay the outstanding loans.

14.As stated in paragraph 107 of the Board’s Decision, the 2^nd applicant relied on the same grounds as those of the 1^st applicant.

Oral hearings

15.The applicants requested for an oral hearing of the Leave Application and their case was first heard on 23 September 2025.

16.At the hearing, although the 1^st applicant confirmed that she had received this court’s letter informing her of the need to solicit legal representation for the 2^nd applicant, the 1^st applicant had not approached the Legal Aid Department (“LAD”) to make an application. Nevertheless, she said that she would do so. Hence, the hearing was adjourned for the 1^st applicant to apply for legal aid for the 2^nd applicant. The 1^st applicant was directed to approach LAD on or before 8 October 2025 to make an application for legal aid for the 2^nd applicant.

17.At the resumed hearing on 4 November 2025, the 1^st applicant said that she went to LAD immediately after the first hearing on the same day, and again on 25 October 2025. However, she was given to understand that she needed some documents from this court to make an application. When this court asked whether she had brought a copy of the Form 86 and her supporting affirmation to LAD, the 1^st applicant said that she did not. She asked for leave to take photos of the said documents. The request was refused and the 1^st applicant was directed to apply for a file search to make copies of the aforesaid documents.

18.The hearing was thus adjourned again for the 1^st applicant to apply for legal aid for the 2^nd applicant.

19.The hearing was resumed on 13 August 2026, after the 2^nd applicant’s application for legal aid was refused.

20.As aforesaid, the 2^nd applicant is a minor and was represented by his mother, ie the 1^st applicant, at the hearing.

21.The 1^st applicant filed an affirmation dated 4 December 2019 which contained a number of grounds for their intended judicial review. When this court asked the applicants to elaborate on the same, the 1^st applicant merely said that both she and the 2^nd applicant would rely on what were stated there.

22.The 1^st applicant only added that she wanted to stay in Hong Kong to take care of the 2^nd applicant, who was born in Hong Kong. She said that she was married in Hong Kong to a Hong Kong resident, her husband is old, and the 2^nd applicant is studying in Hong Kong. She applied for dependent visas for both herself and the 2^nd applicant, and they were waiting for the result of their applications.

23.The 1^st applicant clarified with this court that the biological father of the 2^nd applicant was a Vietnamese with whom she had lost contact, and she had been raising the 2^nd applicant on her own. The 1^st applicant’s husband is taking care of them currently.

24.The 1^st applicant further said that she could not return to Vietnam because she owed a debt there, and there was no base for her to establish over there. She added that she has heart disease, high blood pressure and diabetes, and she had been receiving treatment in Hong Kong.

25.As to the 2^nd applicant, he has been living in Hong Kong all along. If the 2^nd applicant was to return to Vietnam, he would have to start over again. The 2^nd applicant himself, who was also present at the hearing, said that he loved school and he wanted to stay in Hong Kong and to continue his study here.

Grounds for judicial review

26.The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

27.The applicants did not advance any ground for their intended judicial review in their Form 86.

28.In the 1^st applicant’s supporting affirmation dated 4 December 2019, she raised a total of 10 grounds with different headings. The grounds are summarised as follows:-

The Board did not fully understand the real situation in Vietnam and made an erroneous decision

(1)  The Board did not fully understand the real situation in Vietnam and made an erroneous decision regarding the availability of state protection to the applicants.

(2)  The 1^st applicant cited an article from Thanh Nien News website which indicated that corruption in Vietnam was very serious. The 1^st applicant claimed that the article could support her claim that she would need to bribe the police there before she could obtain their assistance; otherwise, the police would only treat her problem as a private dispute and would not accept her report. The 1^st applicant added that it could also explain why the police only verbally warned Thanh after she reported him to the police.

(3)  The 1^st applicant cited an article from the Sina News website which showed that the seriousness of corruption in Vietnam was admitted by even the highest official in the government. Thus, the problem was not just an observation by the 1^st applicant.

(4)  Based on the real situation in Vietnam, the 1^st applicant considered that the police might not act upon the policy of the government, which were laid out in paragraph 68 of the Board’s Decision. She did not agree with the Board’s conclusion at paragraph 93 of the Board’s Decision, where it stated that the 1^st applicant was not a protected person under BOR 2[1] or BOR 3[2]. The 1^st applicant considered that such conclusion was the Board’s assumption without any support.

The Board’s Decision was unreasonable

(5)  The Board’s Decision was unreasonable and was based on assumptions without evidence in support – The Board’s conclusion in paragraph 50 of the Board’s Decision on her Persecution Risk[3] was based on irrelevant facts such as the money lender did not use brutal means to assault her. The 1^st applicant also challenged the Board’s finding in paragraph 52 of the Board’s Decision, namely that the injuries the 1^st applicant suffered were not serious as she did not seek treatment in hospitals, as it was not evidentially based. The 1^st applicant referred to paragraph 6 of the Board’s Decision, which stated that she had head injury and was treated in a hospital, but the Board acted to defend the money lender, in that the Board stated that the money lender had no intention to harm or kill her.

(6)  The Board failed to give weight to important facts. Apart from failing to properly consider the real situation and the seriousness of corruption in Vietnam, the Board also failed to consider the fact that the money lender was a triad member, and that triad members were usually collaborating with the police in Vietnam. The 1^st applicant considered that was why even if she sought assistance from the police, she would not obtain the help she needed. The 1^st applicant further asserted that the Board also failed to consider the human rights situation in Vietnam, and cited from Human Rights Watch (2019) that human rights in the country were deteriorating.

The Board’s Decision was unlawful

(7)  The Board did not follow the principles as laid down in SM v SSHD to look at all the evidence in the round, and ruled that the 1^st applicant’s account was not credible and rejected it as untruthful due to minor inconsistencies. The Board disregarded the head injury the 1^st applicant suffered that caused her to be hospitalized and also failed to give serious consideration as to how the injury might have long term adverse effect on her.

(8)  The Board only focused on the lack of material assertion or medical evidence on the part of the 1^st applicant, and erroneously raised the standard of proof. The Board failed to consider that the 1^st applicant had only very limited time to leave Vietnam and hence could not bring with her a lot of material evidence. The Board only based its conclusion on the minor discrepancies but did not pay careful attention to the central theme of the 1^st applicant’s story.

(9)  The 1^st applicant asserted that there was illegality in the Board’s Decision, which was made upon the Board’s failure in following the principles laid down in case law and in applying the correct standard of proof.

Conclusion

(10)  In conclusion, the 1^st applicant asserted that the Board’s Decision, which was made without consideration of the real situation in Vietnam, based on irrelevant facts or failed to focus on important facts, and without following the principles laid down in case law and applying the correct standard of proof, was inappropriate and should be quashed.

29.As mentioned, at the oral hearing before this court, the 1^st applicant merely reiterated the factual basis of the non-refoulement claims for herself, and asked that she and the 2^nd applicant be allowed to stay in Hong Kong for her to take care of the 2^nd applicant and for the 2^nd applicant to continue his study in Hong Kong.

Discussion

30.This court will first deal with the 2^nd applicant’s application.

31.Although the 2^nd applicant did not advance any ground for judicial review for his own case, this court notes that the Board did not assess the 2^nd applicant’s risks separately as a child, who was just 2 years old when his case was presented to the Board for assessment.

32.As can be seen from the Board’s Decision, there was no discussion of the needs and risks specific to the 2^nd applicant by the Board at all.

33.As held by the Court of Appeal in Fabio Arlyn Timogan and Ors v Evan Ruth and Anor [2020] HKCA 971:-

“Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations”.

34.Thus, the Board has clearly committed an error of law when it failed to give separate consideration to the 2^nd applicant’s claim and his personal circumstances in the Board’s Decision.

35.In this regard, leave should be granted to the 2^nd applicant to apply for judicial review in respect of the Board’s Decision concerning his own case.

36.As to the 1^st applicant’s case, she had advanced many grounds in relation to her own case. In gist, she challenged that the Board’s Decision was unreasonable, unlawful and inappropriate in that it was:-

(1)  made without consideration of the real situation in Vietnam;

(2)  based on irrelevant facts;

(3)  made without focusing on important facts;

(4)  made without following the principles as laid down in case law; and

(5)  made without applying the correct standard of proof.

37.This court notes that the Board rejected the 1^st applicant’s claim and her appeal/petition as it found the 1^st applicant’s account not credible and rejected her account as untruthful (see paragraphs 22 and 40 of the Board’s Decision).

38.However, in its assessment of the 1^st applicant’s credibility, the Board had clearly made a mistake in paragraph 25 of the Board’s Decision, where it stated that the 1^st applicant “had been illegally remaining in Hong Kong for about 1 month before surrendering herself to ImmD[4]”, and the 1^st applicant “did not seek protection at the earliest opportunity after landing. Such intentional delay of about 1 month on the part of A1[5] is unfavorable to her credibility”.

39.As can be seen in paragraphs 8 and 23 of the Board’s Decision, the 1^st applicant illegally entered Hong Kong on 12 August 2015, and surrendered herself to the Immigration Department and raised a non-refoulement claim by way of a written signification of 17 August 2015. It is thus clear that the 1^st applicant made her non-refoulement claim only 5 days after she entered Hong Kong, instead of “about a month” as noted and subsequently assessed by the Board as being unfavorable to her credibility.

40.Although the Board did not only rely on the so-called delay of the 1^st applicant in making a non-refoulement claim in finding her claim not credible, it is plain that this issue had been taken into consideration.

41.Thus, the Board’s assessment of the overall credibility of the 1^st applicant’s claim could be flawed.

42.Secondly, the Board rejected the 2^nd applicant’s claim purely for the reason that his claim relied on the same grounds as those of the 1^st applicant. However, in assessing the viability of internal relocation for the 1^st applicant, the Board apparently did not consider the risks and/or difficulties that the 1^st applicant, when she was together with the 2^nd applicant (a very young child), might or would face upon relocation (see paragraphs 94 to 102 of the Board’s Decision).

43.It is therefore this court’s view that the Board’s assessment on the viability of internal relocation lacked comprehensiveness and could be flawed too.

44.In view of the apparent errors on the part of the Board’s assessment on both the 1^st and the 2^nd applicants’ cases as aforesaid, there are already sufficient reasons for both of their cases to be reasonably arguable. It is therefore not necessary to go through all the grounds as set out in the 1^st applicant’s affirmation dated 4 December 2019 at this stage, which could be further argued by the parties later on.

45.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 it is reasonably arguable that the Board had committed some errors of law and/or was wrong in its findings as aforesaid. Hence, leave should be granted to both applicants to proceed with the intended judicial review.

Conclusion

46.For reasons aforesaid, leave is granted to the 1^st and 2^nd applicants to apply for judicial review in respect of the Board’s Decision.

47.The applicants are directed to issue an originating summons for the intended judicial review on or before 2 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

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 applicants/the applicants’ solicitors on: 19/08/2026 Applicants’ 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 12107/18/6/286/V2106 & USM 12108/18/6/287/V2107 Director of Immigration Putative interested party’s ref. no.: QA T/C 1474/18 (Formerly RBCZ 12858/15) & QA T/C 1475/18 (Formerly RBCZ 10108/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)