Case Document

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HCAL 503/2024

[2026] HKCFI 4954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 503 OF 2024

BETWEEN

	Vu Thi Duyen	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 21 March 2024, 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 20 February 2024 (“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/2024/HCAL000503_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 26 October 2023, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named “toture claims Appeal Board Director of Immigration Department” as the 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.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

6.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.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she feared she would be hurt and killed by her creditor Tran Van Nghia and his underlings as she could not repay a loan of 800 million Vietnamese Dong to the creditor.

Disposal on paper

8.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

9.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).

10.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 21 March 2024.

11.In the said affirmation, the applicant merely stated that she would face a genuine and substantial risk of being subject to torture or even killed by her creditor and his men since she was insolvent.

Discussion

12.First of all, the applicant’s alleged risks from her creditor had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

13.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).

14.Thus, despite the fact that the applicant failed to 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.

15.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 1 February 2024. The applicant was present and was thus given the chance to present her case to the Board in person.

16.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its consideration of the credibility of applicant’s evidence and its assessment on the applicant’s risks against each of the applicable grounds under the USM were laid out in paragraphs 17 to 47 of the Board’s Decision, and it is not necessary to repeat the same here.

17.In gist, despite the contradictions between the applicant’s written claims and her evidence at the Board’s hearing, the Board still assessed the applicant’s case based on the information she provided. However, the Board found that the applicant’s problem was purely private in nature, relating to the dispute with the creditor on outstanding loan repayment. The applicant was not persecuted for any of the RC[1] reasons. The Board did not accept that the ill-treatment that the applicant claimed to have suffered attained a minimum level of severity.

18.In respect of state protection, the Board found that the applicant had not lodged her complaint with public security in other regions and/or other Vietnamese authorities after her alleged report to the local police was refused. Although there were setbacks in the Vietnamese police, the Board also found objective country of origin information (“COI”) showing that reforms had been ongoing in Vietnam and there were objective indications that the Vietnamese government had taken practical steps to combat corruption, to improve the protection of the Vietnamese, and had adopted appropriate practices to combat illegal lending. There was no evidence of state acquiescence in the applicant’s case. The Board found that reasonable state protection was available to the applicant in Vietnam to protect her from the alleged threats from her creditor and his underlings if she resorted to it.

19.Moreover, the Board had discussed the issue of internal relocation in details in paragraphs 48 to 54 of the Board’s Decision and had given full reasons for its conclusion that it was not unreasonable or unduly harsh for the applicant to relocate to other cities such as Can Tho and Da Nang to avoid the creditor.

20.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

21.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.

22.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.

23.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

24.For reasons aforesaid, the Leave Application is dismissed.

Dated the 2^nd day of September 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: 02/09/2026 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: 02/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 22403 Director of Immigration Putative interested party’s ref. no.: QA T/C 1053/23 (Formerly RBCZ 5001042/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)