Do Thi Hang and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2078/2023

[2026] HKCFI 5189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2078 of 2023

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave for the Applicants to apply for Judicial Review be refused; and

2.  Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the 2^nd Applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant (“the daughter”), who was born in Hong Kong on 24 November 2015, now aged 10. They are illegal immigrants. They lodged a non-refoulement claim with the Director. The daughter’s claim relies upon the facts of the mother’s claim. The Director refused their claims. They appealed to the Torture Claims Appeal Board (“the Board”). Their application was late. The Board refused to extend time for them to file their notice of appeal, effectively dismissing their appeal (“the Board’s 2019 Decision”).

2.The applicants applied for leave to apply for judicial review of the Board’s 2019 Decision. This Court granted leave to the applicants.

3.By Consent Order dated 23 November 2022, the 2019 Board’s Decision was set aside and the applicants’ late application was remitted to the Torture Claims Appeal Board (“the Board”) with different constitution for fresh determination.

4.On 6 October 2023, the Board convened a hearing for the mother and the daughter. By Decisions respectively dated 19 November 2023 (“the Board’s Decision on the mother) and 13 November 2023 (“the Board’s Decision on the daughter”), collectively called (“the Board’s Decisions”), the Board held that time was extended for the applicants to file their notice of appeal. The Board further held the mother has no merit in her claim, and the daughter’s claim also failed because of the mother’s claim having failed and there is no child specific issue that supports her non‑refoulement claim.

5.The mother and the daughter jointly apply for leave to apply for judicial review of the Board’s Decisions for dismissing their appeal against the Director’s Decision refusing their non-refoulement claim.

6.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

7.The Court discovered that in Form 86 filed on 15 March 2019 in HCAL 730 of 2019, there was another person by the name of Bui Trung Kien, who is the son of the mother (“the son”). The son was also named in the Board’s 2019 Decision. However, the son’s name was deleted in the Board’s 2019 Decision and Form 86. There is no explanation on the court’s file. This Court therefore fixed a hearing for the mother to appear before it for her explanation. However, she was absent at the hearing on 26 August 2026. In the circumstances, the Court has no alternative but to proceed with the application as it is. The son’s case will be considered if there is further application.

8.The discussion below only concerns the mother and the daughter.

The applicants

9.The mother is a national of Vietnam. She is an illegal immigrant. She lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor because she was unable to repay the loan. She gave birth to the daughter in Hong Kong on 24 November 2015.

10.Details of the facts are set out in the Board’s Decisions. See hyperlink for paragraph 14(6) and 14(10).

The Director’s Decision

11.The Director considered the applicants’ claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.By way of the Decision dated 10 May 2018 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because it was unsubstantiated.

The Board’s Decisions

13.The applicants appealed the Director’s Decision to the Board. On 6 October 2023, the Board conducted an oral hearing for their appeals. The daughter was represented by a duty lawyer; the mother acted for herself without legal representation. The Director was represented by a Senior Government Counsel. The mother had given evidence and answered the Board’s questions.

14.Having considered the evidence and the legal submissions, the Board made the findings below.

(1)  The daughter’s claim depends on the facts of her mother’s claim.

As to the mother

(2)  Her fear is that the creditor may harm or kill her because she was unable to repay her debt, and her husband because she has given birth to her son with her boyfriend.

(3)  She has lost contact with her husband since May 2015. Therefore, it is remote that her husband will find out she had given birth to her son with her boyfriend. [45]

(4)  It is clear that the creditor’s threats to kill her or to abduct the daughter were just empty threats. It was just a measure to pressurize her to repay the loan without any intention to carry out the threats at all. [47]

(5)  She did not report to police about the creditor’s threats because she considered the police were corrupt and would not provide protection for her. According to the country-of-origin information (“COI”), the Vietnamese government has recently undergone reforms in order to combat corruption amongst police and to improve their efficiency. [50]

(6)  Internal relocation is viable if she returns to Vietnam. [60] See hyperlink for the Board’s Decision on the mother. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL002078_2023_files/1st_Board's_Decision.pdf

As to the daughter

(7)  The Board had born in mind the decisions of the Court of Appeal in Fabio Arlyn Timogan & Others v Evan Rugh, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Another [2020] HKCA971. [48(3)]

(8)  The mother had raised the issues of difficulty in integrating into the society of Vietnam; difficulty in household registration in Vietnam will hinder internal relocation, and the daughter may not be entitled to social benefit, including medical care and social services. [56]-[59]

(9)  The Board found that the daughter cannot claim loss of medical, social or other forms of assistance she obtains from Hong Kong as her ground in support of her claim. [60] According to the COI, protection of children’s rights, including children born out of wedlock is provided by the law and Convention on the Right of the Child in Vietnam. [61]-[62] As to the household registration, from July 2021, this policy was scrapped. [63]

(10)  It is highly unlikely that she would be tortured under section 37U(1) of the Immigration Ordinance if she returns to Vietnam with her mother. [64] See hyperlink for the Board’s Decision on the daughter. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL002078_2023_files/2nd_Board's_Decision.pdf

15.For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

16.The applicants filed Form 86 on 21 November 2023 for leave to apply for judicial review of the Board’s Decision.

17.In support of their application, the mother has raised the grounds below to challenge the Board’s Decision.

(1)  The Board did not consider BOR 2 risk.

(2)  The adjudicator relied too much on the COI without considering her personal background and experience.

(3)  The adjudicator was improper to require her to answer questions that she was not in a position to offer any response.

DISCUSSION

18.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20.The grounds under paragraph 17 are bare assertions without any evidence in support. They are invalid to challenge the Board’s Decision. It is obvious that the daughter was represented by a duty lawyer, who would have submitted her case, including the child specific issues to the Board. The Board had set out those issues in the Board’s Decision and it had also dealt with them. I do not see any other outstanding issue that had not been considered by the Board. Nor do I find the Board’s decisions unreasonable or irrational.

21.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

22.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

23.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s application a nullity.

Dated the 16^th 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