Case Document

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HCAL 564/2024

[2026] HKCFI 4960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 564 OF 2024

BETWEEN

	Bui Thi Gan	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 8 April 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 1 March 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/HCAL000564_2024_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”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 October 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named “THE TORTURE CLAMiS APPE AL BOARD DiRETOR OF ImmiGRAtion” as the putative respondents 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 harmed or killed by her creditor TRAN VAN HAI as she could not repay a loan of 400 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 8 April 2024.

Discussion

11.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).

12.Thus, despite the fact that the applicant failed to advance any 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.

13.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 23 January 2024. The applicant was present and was thus given the chance to present her case to the Board in person.

14.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 and its assessment on the applicant’s risks against each of the applicable grounds under the USM were laid out in paragraphs 39 to 57 of the Board’s Decision, and it is not necessary to repeat the same here.

15.In gist, the Board did not find the applicant’s evidence credible and reliable to support her non-refoulement claims, and rejected the applicant’s case outright. However, even if it was wrong in its assessment on the applicant’s credibility and reliability, the Board found that the applicant’s evidence could not sustain her claim for non-refoulement protection.

16.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 threatened for any of the RC[1] reasons. The applicant had not suffered serious injury from the assault by the creditor. There was no evidence of state acquiescence in the applicant’s case. The applicant had not sought assistance from or reported her moneylending problem to any relevant government authorities in Vietnam. The Board did not accept that the protection of the relevant government authorities (including the police) would not be available to the applicant in Vietnam.

17.Although the Board did not see the question of internal relocation arose in view of its findings as summarised above, the Board did explicitly state in paragraph 56 of the Board’s Decision that if it were necessary for the applicant to get out of her hometown to keep away from her creditor because the police did not protect her there, the applicant could, given her profile, relocate to Bien Hoa or Nha Trang and earn a living there without unreasonableness or undue harshness.

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

19.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.

20.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.

21.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

22.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 22380 Director of Immigration Putative interested party’s ref. no.: QA T/C 1009/23 (formerly RBCZ 5000955/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)