Pham My Hoang Minh (A Minor) By Pham My Hung, His Next Friend v. Torture Claims Appeal Board
|
HCAL 444/2026 [2026] HKCFI 5891 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 444 OF 2026 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 24 February 2026, Pham My Hung and Pham My Hoang Minh 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 4 December 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.Pham My Hung (“the Father”) is the father of Pham My Hoang Minh, who is a minor. In Form 86, the Father named himself as the 1st applicant and Pham My Hoang Minh as the 2nd applicant. The Father, however, filed his own application for leave to apply for judicial review in HCAL 1887/2020, and hence he should not be an applicant in the Leave Application. 3.The Father also confirmed at the hearing before this court on 15 October 2026 that the Leave Application concerns only his son Pham My Hoang Minh and not himself. 4.Moreover, the Board’s Decision concerns only Pham My Hoang Minh’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 11 July 2024 (“the Director’s Decision”). Thus, Pham My Hoang Minh should be the sole applicant in the Leave Application. 5.In the document with the title “Grounds on which relief is sought” that was annexed to Form 86, the applicants sought relief in respect of both the Board’s Decision and the Director’s Decision. However, the Father confirmed at the oral hearing before this court on 15 October 2026 that the Board’s Decision should be the only subject matter of the Leave Application. 6.The Board found that Pham My Hoang Minh’s appeal/petition against the Director’s Decision failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed his appeal/petition and confirmed the Director’s Decision, which rejected his claim for non-refoulement protection. Amendments 7.As aforesaid, Pham My Hoang Minh should be the sole applicant in the Leave Application. His name should be stated in Form 86 as “Pham My Hoang Minh (a minor) by Pham My Hung, his next friend”. 8.Thus, on this court’s own motion, “Pham My Hung” is deleted as the 1st applicant, the 2nd applicant is changed to be the sole applicant and his name is amended to “Pham My Hoang Minh (a minor) by Pham My Hung, his next friend”. 9.In Form 86, 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, when only the Board should be named as the putative respondent, and the Director should be named as the putative interested party. 10.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party. Late application 11.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 12.However, the applicant filed Form 86 on 24 February 2026, which was more than 1 year and 2 months after the Board’s Decision (made on 4 December 2024). The applicant was hence late for more than 11 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 13.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
14.The Father did not make an application for extension of time when he filed the Leave Application for the applicant. 15.At the oral hearing before this court on 15 October 2026, the Father explained the delay by saying that he wanted to wait for the result of his own application for leave to apply for judicial review in order to see how to proceed with the applicant’s application. 16.A delay of more than 11 months is very significant, and the Father’s explanation for the delay is not satisfactory. Although the Father’s own application in HCAL 1887/2020 was dismissed by this court on 16 February 2026 and he indeed filed the Leave Application for the applicant 8 days after his own application was dismissed, the Father could offer no cogent reason as why he had to wait for the result of his own application before he could file a separate application for his son, ie the applicant. More importantly, there is no merit in the Leave Application whatsoever as discussed below. 17.Thus, this court is not prepared to extend the time for the applicant to file the Leave Application. The Leave Application can be dismissed on the ground of being made out of time alone. 18.However, for the sake of completeness, this court will still examine the merits of the Leave Application. Legal representation of the applicant 19.The applicant is a minor born on 18 September 2023 in Hong Kong and is represented by the Father in the Leave Application. 20.The Father applied for legal aid for the applicant but his application was refused by the Director of Legal Aid on 8 September 2026. 21.At the hearing before this court on 15 October 2026, the Father confirmed that he would not engage a private lawyer to represent the applicant. 22.As the applicant was legally represented before the Director, and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation in the Leave Application was a mere irregularity and it would not prejudice the applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application. The applicant’s case 23.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. 24.In sum, the applicant’s claim for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by a creditor of his mother, a creditor of his mother’s family and a creditor of the Father due to his parents’ inability to repay their respective loans. The applicant’s elder sister also claimed for non-refoulement protection in Hong Kong for fear of harm from the creditors of their parents in Vietnam. Oral hearing 25.The applicant requested for an oral hearing and his case was heard on 15 October 2026. 26.The Father confirmed that the applicant would rely on the grounds stated in the document with the title “Grounds on which relief is sought” that was annexed to Form 86. When this court invited the Father to elaborate on the said grounds, the Father merely said that everything had been clearly stated in the said document and he had nothing to add. Grounds for judicial review 27.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). 28.The contents of the said document with the title “Grounds on which relief is sought” were all very general and 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. 29.As aforesaid, the Father did not elaborate on any of the grounds stated in the said document at the oral hearing. Discussion 30.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. 31.There are a total of 6 paragraphs under the heading “Grounds” in the 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. Only paragraphs 1, 3, 4 and 6 of the grounds are relevant to the Leave Application. 32.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. 33.In any event, the Board did assess the applicant’s risk of right to life but concluded that after consideration of all the information and evidence, there was no sufficient reason to believe that the applicant’s right to life would be violated upon his return to Vietnam. 34.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 his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board. 35.In paragraph 4 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response. This accusation lacks any particulars in support. 36.The applicant was only an infant when his case was assessed by the Board. His parents attended the Board’s hearing on his behalf and answered questions for him. The applicant did not state which explanations his parents provided were not accepted by the Board and which questions his parents were not in a position to offer any response. 37.There was in fact nothing wrong for the Board to question the applicant’s parents who were acting on his behalf extensively to try to understand the applicant’s claims better and to assess the credibility of his parents and their accounts of the events leading to the applicant’s 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’s parents on his behalf at all. 38.Finally, 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. 39.The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection. 40.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”. 41.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. 42.The applicant’s alleged danger in his home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision. 43.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). 44.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. 45.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 1 November 2024. As can be seen from paragraph 26 of the Board’s Decision, the Board invited the Pilot Scheme for Provision of Publicly-funded Legal Assistance for Non-refoulement Claimants to consider if legal representation would be provided for the applicant as he was a minor. However, the Pilot Scheme Office refused to offer legal representation for the applicant. The Board then allowed both parents of the applicant to represent the applicant. Thus, the applicant was given the opportunity to present his case to the Board through his parents. 46.The Board was clearly aware of the legal principles required for the assessment of cases for non-refoulement claimants who were minors (see paragraphs 25 to 40 of the Board’s Decision). There was in fact no child specific risk in the applicant’s case, as he is a legitimate child of his parents who are both Vietnamese. 47.As the applicant was essentially relying on both his mother’s and the Father’s cases for claiming non-refoulement protection, the Board heard the evidence of both his parents. 48.The Board had laid out its findings on the evidence given by the applicant’s mother and the Father in paragraphs 49 to 69 and 70 to 89 of the Board’s Decision respectively, and it is not necessary to repeat the same here. 49.In gist, the Board did not accept the evidence given by the applicant’s mother and the Father in relation to their claims about loans being taken out by them or by the mother’s family. The Board found major inconsistencies in the evidence of both the applicant’s parents. The Board rejected that the parents or the mother’s family had taken out the alleged loans. It followed that the Board also rejected their evidence in relation to the creditors’ chasing them for repayment of the loans and the related assaults. 50.The Board had confirmed with both parents of the applicant that their respective creditors might not even know of the existence of the applicant. Both parents of the applicant had not seen or heard from their respective creditors since 2015. Further, both parents agreed that the intention of their respective creditors was only to put pressure on them to repay their respective loans and might not have a real intention to harm or kill them. 51.Moreover, the Board found that even if the applicant’s parent’s evidence was accepted, their disputes with their creditors were all private financial disputes arising from their inability to repay their loans. The ill-treatment suffered by both the applicant’s parents were not severe and did not attain a minimum level of severity. The family members of both the applicant’s parents remained unharmed in Vietnam. The fear of the applicant’s parents from their respective creditors was not related to any Convention reasons. There was no evidence of state acquiescence in the applicant’s parents’ cases. 52.The Board further found that even if the creditors of the applicant’s parents were still looking for them and/or their family, state protection would be available to the applicant. In arriving at this conclusion, the Board had also taken into consideration the applicant was only an infant when his case was being assessed. Thus, the Board had also taken into account the existence of various organizations offering assistance to women and children in need, and had found from COI that Vietnam had in place legislations which protected the rights of children, and banned all acts of cruelty against children. The Board was satisfied that the Vietnamese government would provide appropriate and reasonable protection to the applicant (see paragraphs 115 to 120 of the Board’s Decision). 53.In view of its findings as summarised above, it was not strictly necessary for the Board to assess the viability of internal relocation. Nevertheless, the Board did explicitly state that there was no evidence that the alleged creditors of the applicant’s parents had the ability to locate them anywhere in Vietnam. The applicant’s parents’ claim in this aspect was only their own speculation. The Board was of the view that if the applicant was concerned that he would face risks upon returning to Vietnam, internal relocation could be a viable option for him to reduce or negate any perceived risk (see paragraphs 161 to 162 of the Board’s Decision). 54.Thus, the Board concluded that the applicant’s appeal/petition against the Director’s Decision failed on all the applicable grounds under the USM. 55.The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 56.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. 57.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 58.For reasons aforesaid, the Leave Application is dismissed for being made out of time and devoid of merits. Dated the 21st day of October 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 |
Summaries and metadata are generated from the judgment. Report an error
Cases cited in this judgment