Vy Thi Lieu v. Torture Claims Appeal Board
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HCAL 594/2024 [2026] HKCFI 4955 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 594 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 12 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 2 April 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 August 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named “toture claims Appeal Board” and “Director of Immigration Department” 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 being harmed or killed by her creditor NGUYEN Thi Hoa as she had no money to repay the debt owed 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 12 April 2024. 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 11.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. 12.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). 13.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. 14.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 15 November 2023. The applicant was present and was thus given the chance to present her case to the Board in person. 15.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 applicant’s claim was laid out in paragraphs 53 to 61 of the Board’s Decision, and it is not necessary to repeat the same here. 16.In gist, the Board was not satisfied with the factual account given by the applicant, which the Board found to contain incoherence and improbability, after she was given opportunities to explain at the Board’s hearing. While the Board considered that the applicant might have some issues with the creditor, the Board did not accept her factual account of the events and found it unconvincing that the creditor intended to kill her. Thus, the Board was not satisfied that there was a real chance that the applicant would be killed or subjected to any form of relevant harm were she to return to her hometown. 17.Moreover, the Board went on to access the viability of internal relocation for the applicant, in case the Board was wrong in its findings as summarised above. The Board had given its reasons in paragraph 61 of the Board’s Decision for the conclusion that it would be reasonable and not unduly harsh for the applicant to relocate if it were necessary to do so. The Board was satisfied that the applicant would be able to work and establish a life for herself in another part of Vietnam. 18.In its assessment of the applicant’s claimed risk against all the applicable grounds under the USM, the Board found that, even if the applicant’s account was accepted, the applicant’s problem was purely private in nature which had no involvement of the state. There was no evidence of state acquiescence in the applicant’s case. The applicant’s feared harm was not for any of the RC[1] reasons. The applicant had not sought assistance from the police in Vietnam. The Board was not satisfied that assistance from the authorities would not be available to the applicant in Vietnam should she require it. 19.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 20.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. 21.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. 22.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 23.For reasons aforesaid, the Leave Application is dismissed. Dated the 2nd day of September 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 [1] The non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol |
Cases cited in this judgment