Vu Van Hung and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 789/2023

[2026] HKCFI 5465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 789 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 Applicants being absent in open court;

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

Leave for the Applicants to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicants are husband and wife.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 12 May 2023 of the Torture Claims Appeal Board (“the Board’s Decision”).

3.The applicants were absent at the hearing on 14 September 2026. I shall deal with their application on the papers.

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

The applicants

5.The applicants are nationals of Vietnam. They are illegal immigrants.

6.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by their creditor because they were unable to repay their loans.

7.Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000789_2023_files/the_Board's_Decision.pdf

The Director’s Decisions

8.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”).

9.By way of the Director’s Decisions respectively dated 23 and 29 June 2022, (“the Director’s Decisions”), the Director assessed the applicants’ claims on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s Decision

10.The applicants appealed the Director’s Decisions to the Board. On 18 April 2023, the Board conducted an oral hearing for their appeals. The mother had given evidence and answered the Board’s questions.

11.Having considered the evidence, the Board found that the applicants’ evidence was full of incoherence and they were unable to satisfy the Board after they were given opportunity to explain at the hearing [60]; that state protection will be available to them if they return to Vietnam [66]; that their alleged risks were localized, therefore internal relocation is viable [75].

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

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 22 May 2023 for leave to apply for judicial review of the Board’s Decision.

14.In support of their application, the applicants stated that the Board’s Decision is wrong as it did not consider their right to life; that the adjudicator had placed too much reliance on the country-of-origin information without considering their personal background and experience; that the adjudicator was unfair because he requested them to answer questions that they were not in a position to offer any response; that the Board’s Decision was irrational.

DISCUSSION

15.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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. The grounds under paragraph 14 are bare assertions without any evidence in support. They are invalid to challenge the Board’s Decision. There is no evidence that the Board’s Decision is wrong in law or procedurally unfair or the decisions are irrational.

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

DISPOSITION

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

Dated the 30^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