Do Thi Tinh v. Torture Claims Appeal Board
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HCAL 1081/2023 [2026] HKCFI 5267 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1081 OF 2023 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 4 July 2023, 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 8 June 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 July 2022 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection. Amendments 3.The applicant named the Board / Non-refoulement Claims Petition Office and the Director as the putative respondents and did not name any putative interested party in Form 86. 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.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 6.Thus, this court 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 7.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. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or killed by her creditor NGUYEN THI THOA due to her inability to repay a loan of 800 million Vietnamese Dong co-borrowed with her husband. Oral hearing 9.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 10 September 2026. 10.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits. 11.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court. Grounds for judicial review 12.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). 13.The applicant annexed a document with the title “Grounds on which relief is sought” to her Form 86. The contents of the said document were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the said grounds to make the Leave Application, this court will still deal with the grounds as discussed below. Discussion 14.As mentioned, all the grounds contained in the document with the title “Grounds on which relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision. 15.There are a total of 6 paragraphs under the heading “Grounds” in the applicant’s said document. Paragraphs 2 and 5 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraphs 1, 3, 4 and 6 of the grounds are relevant to the Leave Application. 16.In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either. 17.In any event, the Board did assess the applicant’s risk of right to life but concluded that the applicant’s case on the ground of BOR 2 Risk[1] was not substantiated (see paragraphs 51 and 52 of the Board’s Decision). 18.In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take her personal background and experience into account. However, the applicant did not state which aspects of her personal background and experience had not been taken into account by the Board. 19.In paragraph 4 of the grounds, the applicant alleged that the adjudicator was procedurally improper and unfair when assessing whether to accept or not to accept explanations provided by her, and unreasonably required her to respond to questions. This accusation lacks any particulars in support. The applicant did not state which explanations she provided were not accepted by the Board and which questions she was unreasonably required to answer. 20.There was in fact nothing wrong for the Board to question the applicant extensively to try to understand her claims better and to assess her credibility and her accounts of the events leading to her claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all. 21.In paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational. 22.The Board had in fact provided a detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all applicable grounds under the USM to claim non-refoulement protection. The Board’s rejection of her non-refoulement claim was a decision made after due consideration of the law and the evidence placed before it. If the applicant intends to challenge the finding of facts by the Board, it is not permissible in an application for judicial review. 23.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 24.Thus, none of the grounds that were contained in the applicant’s said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case. 25.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). 26.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 27.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 25 April 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person. 28.The Board laid out its assessment of the applicant’s evidence in paragraphs 30 to 36 of the Board’s Decision, and it is not necessary to repeat the same here. 29.In gist, the Board found that the applicant was not a truthful and reliable witness. The Board found multiple inconsistencies between her written claims and her evidence at the Board’s hearing. The Board did not believe that the applicant had borrowed money from the creditor or she had been chased for repayment as she alleged. 30.Further, the Board found that even if the applicant’s account was accepted, she would still fail in her claim for non-refoulement protection on all the applicable grounds under the USM. 31.The Board found that the applicant’s fear only arose from a financial dispute with her creditor, which was private in nature. The Board considered that the injuries the applicant sustained from the assaults by the creditor were not so serious as to amount to torture or attain a minimum level of severity. There was no evidence that the creditor was a state actor, and there was no element of state acquiescence in the alleged ill-treatment of the applicant. Her fear of ill-treatment did not fall within any of the Convention categories. 32.Moreover, the Board found from COI that despite setbacks, the Vietnamese government had taken actions to combat corruption and improve the effectiveness of the police. COI also showed that the Vietnamese government was determined to curb illegal moneylending. The applicant had never sought assistance from the police or authorities in relation to her problem when she was in Vietnam. There was no evidence to show that the applicant would not be afforded the requisite level of state protection if she was to return to Vietnam. 33.Furthermore, the Board had also given its reasons in paragraph 44 of the Board’s Decision for the finding that the applicant could relocate in Vietnam in order to avoid any perceived risk from the creditor. 34.Thus, the Board concluded that the applicant had failed to establish a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the USM. 35.The finding of facts, 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. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 36.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. 37.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 38.For reasons aforesaid, the Leave Application is dismissed. Dated the 16th 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] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. |
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