Vo Thi Kim Yen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1504/2022

[2026] HKCFI 4788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1504 of 2022

BETWEEN

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 the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:

1.  The Form 86 be amended to name the Director of Immigration as the Putative Interested Party only.

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.By a Form 86 filed on 15 December 2022 (“Form 86”), the applicant, a national of Vietnam, applied for leave to apply for judicial review against the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 9 December 2022 (“Board’s Decision”)[1] confirming the decision of the Director of Immigration (“Director”) dated 3 December 2021 and rejecting the applicant’s non‑refoulement claim.

2.In the Form 86, the Board and the Director was both named as the putative respondent. No party was named as the putative interested party. Only the Board should be the putative respondent, and the Director should be the putative interested party instead. The Form 86 shall be amended accordingly on the court’s own motion.

3.I refer to the Board’s Decision for the background of the applicant, the basis of the claim, the evidence and the argument the applicant has relied upon, which will not be repeated herein.

4.The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board. However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14.

5.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.

6.The present application for leave is meant to be a filtering process, and I am not expected to give elaborated reasons for my decision: see Re Zunariyah [2018] HKCA 14, at paragraph 23. I will therefore provide brief reasons for my decision as follows.

Discussion

7.The applicant has set out the following grounds for the intended application for judicial review:

“3. I believe that the Director of Immigration and the Adjudicator of Torture Claims Appeal Board reached the Decision(s) wrongly in assessing my non-refoulement claim. I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is mainly protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from killings that I may face if I am deported back to my country.

4. From the Director's Decision(s), it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim.

5. The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.

6. The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me & unreasonably requires me to response to questions that I was not in a position to offer any response.

7. I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decisions. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decisions void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decisions with the arguments put forward above. As such, the decisions of the director should be considered unreasonable in the scope of Public Law.

8. The Adjudicator made a ruling to dismiss my appeal/petition in the Torture Claims Appeal Board/Non-refoulement Claims Petition Office based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decisions was irrational. I humbly ask this Honorable Court to grant leave to have the Decisions judicially reviewed.”

8.At the hearing on 14 May 2026, the applicant was absent.

9.All intended grounds are general assertions without particulars. Those grounds also suffer more specific problems as follows.

10.Regarding the applicant’s intended challenge against the Director’s decision, such decision has been superseded by the Board’s Decision and therefore it is not susceptible to judicial review: re Moshsin Ali [2018] HKCA 549 at §45. The focus of the present application should be the Board’s Decision.

11.As to the intended challenge regarding the use of the COIs by the Board, the applicant has provided no particulars as to any specific problems of the COIs. The applicant also has not provided any particulars as to her alleged personal background and experience that were inconsistent with the COIs, and how they would have significantly impacted upon the Board’s Decision. Notably, the applicant had not reported the assaults by the creditor to the police (see paragraph 12 of the Board’s Decision) and therefore had no specific evidence to demonstrate the lack of state protection for her (see paragraphs 50 to 51).

12.The allegation that there was state acquiescence in her case was unsubstantiated by any particulars or evidence.

13.None of the grounds could demonstrate (i) any procedural unfairness in the appeal before the Board and (ii) how the Board’s Decision was irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.

14.I have also considered the Board’s Decision as a whole by applying the enhanced standard of scrutiny. I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision.

15.The Board’s Decision has, with respect, correctly and comprehensively set out the applicable legal principles. I do not see any errors in either the summary or the application of those legal principles.

16.The Board’s Decision has also set out the procedural history of the applicant’s non-refoulement claim, including the details of the hearing before the Board 11 July 2022 (see paragraph 6 of the Board’s Decision). I see no irregularities or unfairness in the entire process.  

17.Upon the analysis of the applicant’s evidence given both before and at the hearing, the Board concluded that the applicant was a defaulting debtor and might have been assaulted by some gangsters but found that the creditors did not have any intention to seriously harm or kill her. (see paragraphs 29 to 37 of the Board’s Decision). The Board further concluded that the applicant had failed to establish the proscribed risks. In any event, the Board took the view that state protection would be available and that internal relocation did not need to be considered as the applicant was unable to establish that she faced a proscribed risk in her area of residence (see paragraph 77 and paragraphs 97 to 100 of the Board’s Decision). Based on the available materials, the conclusions of the Board were clearly justifiable. I do not see any basis to suggest that the Board was irrational or Wednesbury unreasonable.

18.I therefore dismiss the application for leave to apply for judicial review under the Form 86.

Dated the 24^th day of August 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