Vu Thanh Thuy and Another v. Torture Claims Appeal Board
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HCAL 641/2026 [2026] HKCFI 5892 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 641 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 2nd applicant: The Leave Application 1.By way of Form 86 dated and filed on 26 March 2026, the 1st and 2nd applicants 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 27 June 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.However, the Board’s Decision concerned only the 2nd applicant, not the 1st applicant. Thus, on 5 August 2026, this court ordered that the 1st applicant’s application for leave to apply for judicial review be dismissed. This court also ordered that the Leave Application in respect of the 2nd applicant be fixed for an oral hearing pending the outcome of her legal aid application (see Form CALL-1 dated 5 August 2026). 3.The 2nd applicant’s legal aid application was refused on 7 September 2026, and hence her case was fixed for hearing on 15 October 2026. However, the 2nd applicant was absent at the hearing on 15 October 2026. 4.The Board found that the 2nd applicant’s non-refoulement claim failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected her appeal/petition against the decision of the Director of Immigration (“the Director”) dated 7 September 2020 (“the Director’s Decision”) and confirmed the same, which rejected her non-refoulement claim. 5.In the document with the title “Grounds on which relief is sought”, which was annexed to the applicants’ Form 86, the applicants sought relief in respect of both the Board’s Decision and the Director’s Decision. 6.Nevertheless, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the 2nd applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). 7.Thus, this court will deal with the 2nd applicant’s application for leave to apply for judicial review in respect of the Board’s Decision only. Legal representation of the 2nd applicant 8.The 2nd applicant is a minor and the 1st applicant appeared on behalf of the 2nd applicant at the hearing before the Board. The 2nd applicant was also legally represented when her case was dealt with by the Board. 9.As the 2nd applicant was legally represented before both the Director and the Board, and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation for the 2nd applicant in the Leave Application was a mere irregularity and it would not prejudice the 2nd applicant. Hence, this court waived the irregularity and will proceed to deal with the Leave Application in respect of the 2nd applicant as discussed below. Late application 10.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the 2nd 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. 11.However, the applicants filed Form 86 on 26 March 2026, which was almost 2 years and 9 months after the Board’s Decision (made on 27 June 2023). The 2nd applicant was hence late for almost 2 years and 6 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the 2nd applicant to make the Leave Application. 12.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
13.The applicants did not make any application for extension of time and provided no explanation for the delay when they filed the Leave Application. 14.A delay of almost 2 years and 6 months is very substantial, and there is simply no reason for this court to grant an extension of time for the 2nd applicant to file the Leave Application when no explanation was given at all. More importantly, there is no merit in the Leave Application whatsoever as discussed below. 15.Having considered the above criteria, this court is not prepared to grant any extension of time to the 2nd applicant to file the Leave Application. The Leave Application in respect of the 2nd applicant can therefore be dismissed on the ground of being made out of time alone. 16.However, for the sake of completeness, this court will still deal with the Leave Application as discussed below. The 2nd applicant’s case 17.It is not necessary for this court to repeat the details of the 2nd applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 18.In sum, the 2nd applicant claimed for non-refoulement protection because her life would be in danger if she was sent back to Vietnam as her parents could not repay a loan to the creditor of her father, and the creditor or his men would harm and kill the 2nd applicant. Oral hearing 19.As aforementioned, this court ordered that an oral hearing be fixed to hear the 2nd applicant’s case pending her application for legal aid. However, the 2nd applicant and the 1st applicant acting as the 2nd applicant’s next friend were both absent at the hearing on 15 October 2026. 20.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. 21.Thus, this court will proceed to consider the merits of the 2nd applicant’s case based on the written materials before this court. Grounds for judicial review 22.The 2nd 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). 23.The applicants annexed a document with the title “Grounds on which relief is sought” to their Form 86. This court will treat those grounds as the 2nd applicant’s grounds for her application. However, the contents of the said document 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, this court will still deal with the grounds as discussed below. Discussion 24.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, supra). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision. 25.There are a total of 6 paragraphs under the heading “Grounds” in the applicants’ said document. Paragraphs 2 and 5 of the 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. 26.In paragraph 1 of the grounds, the 2nd 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 2nd applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the 2nd applicant to establish any ground by just mentioning the right to life in paragraph 1 either. 27.In any event, the Board did assess the 2nd applicant’s risk of right to life, and after careful consideration of the 2nd applicant’s case, found that there was nothing in the 2nd applicant’s case that supported her claim under BOR 2[1] if she was refouled to Vietnam. 28.In paragraph 3 of the grounds, the 2nd 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 2nd applicant did not state which aspects of her personal background and experience had not been taken into account by the Board. 29.In paragraph 4 of the grounds, the 2nd 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 2nd applicant did not state which explanations she provided (acted by the 1st applicant) were not accepted by the Board and which questions she (acted by the 1st applicant) was unreasonably required to answer. 30.In fact, this allegation could not be true. The 2nd applicant was legally represented before the Board at the Board’s hearing. If indeed the Board had unreasonably required her (acted by the 1st applicant) to respond to questions, her legal representative should have raised the matter at the Board’s hearing. 31.There was actually nothing wrong for the Board to question the 2nd applicant (acted by the 1st applicant) extensively to try to understand her claims better and to assess 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 2nd applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the 2nd applicant (acted by the 1st applicant) at all. 32.In paragraph 6 of the grounds, the 2nd 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. 33.The Board had in fact provided a detailed analysis of the 2nd applicant’s claim and the reasons why the Board concluded that the 2nd 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. 34.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”. 35.Thus, none of the grounds that were contained in the 2nd 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 2nd applicant’s case. 36.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). 37.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 2nd applicant for the intended judicial review. 38.In assessing the appeal/petition by the 2nd applicant, the Board held an oral hearing on 19 May 2023. As said, the 2nd applicant was legally represented and the 1st applicant appeared on her behalf. Thus, the 2nd applicant was given the opportunity to present her case to the Board through her legal representative. 39.In its assessment of the 2nd applicant’s claim, the Board was cognizant of the principles set down by Fabio[2] (see paragraph 38 of the Board’s Decision). 40.The Board laid out its assessment of the 2nd applicant’s case on all the applicable grounds under the USM in paragraphs 37 to 56 of the Board’s Decision, and it is not necessary to repeat the same here. 41.In gist, the Board found that the 2nd applicant’s case was clearly a loan dispute between the 2nd applicant’s father and his creditor. The loan did not involve the 1st applicant, let alone the 2nd applicant. The Board noted that the 1st applicant entrusted the 2nd applicant’s paternal grandparents to look after the 2nd applicant’s eldest sister, who was born in Vietnam, before the 1st applicant left Vietnam. The 2nd applicant’s eldest sister remained living in Vietnam, which suggested that even if the creditor chased after the 2nd applicant’s father for repayment of the loan, the creditor did not target the children. The Board found that it also explained why there was no fear of the safety of the 2nd applicant’s eldest sister when the 1st applicant decided to leave her behind in Vietnam under the care of the 2nd applicant’s paternal grandparents. 42.The Board had also considered the 2nd applicant’s counsel’s submission that if the 2nd applicant was to be returned to Vietnam without her parents, it would be hard for her to live in Vietnam. However, in view of the fact that the 2nd applicant’s eldest sister was still living in Vietnam together with her paternal grandparents, the Board found that it was not the case that if the 2nd applicant were returned to Vietnam without her parents, there was no one to look after her. 43.In considering the 1st applicant’s concern that the police in Vietnam would not help them even if she reported her fear of being harmed by the creditor to the police because they were corrupt, the Board found that although COI did suggest that corruption and inefficiency were common in all levels of the police force, COI also revealed that the Vietnamese government had recently undergone reforms in order to combat corruption amongst the police and to improve their efficiency. 44.The Board therefore found that the 2nd applicant was not at risk of being harmed, ill-treated, tortured or persecuted if she was to return to Vietnam. 45.On top of its findings as summarised above, the Board also considered that, if the 2nd applicant was to return to Vietnam with the 1st applicant, the 1st applicant should have no difficulty to live a normal life in a province or city other than her own in order to avoid the creditor of the 2nd applicant’s father. In its consideration of the viability of internal relocation of the 2nd applicant with the 1st applicant, the Board had also taken into account the difficulties they might face, and the availability of assistance, including education and medical services, that could be rendered to them. 46.Thus, the Board concluded that the 2nd applicant’s claim failed on all the applicable grounds under the USM. 47.The finding of facts, including the 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. 48.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. 49.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 2nd applicant has failed to establish such a claim and hence leave must be refused. Conclusion 50.For reasons aforesaid, the Leave Application in respect of the 2nd applicant is dismissed for being made out of time and also for lack 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 [1] Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [2] Fabio Arlyn Timogan and Ors v Evan Ruth and Anor [2020] HKCA 971 |
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Cases cited in this judgment
Khatri Puja v. Torture Claims Appeal Board
Pham My Hoang Minh (A Minor) By Pham My Hung, His Next Friend v. Torture Claims Appeal Board
Antonio, Rodel Calaur v. Torture Claims Appeal Board
Do Thi Tinh v. Torture Claims Appeal Board
Do Van Nghia v. Torture Claims Appeal Board
Dinh Viet Son v. Torture Claims Appeal Board
Yousuf Nilufa v. Director of Immigration
Ekbal Hossain v. Torture Claims Appeal Board
Evi Farida v. Torture Claims Appeal Board
Syahrul Januar v. Torture Claims Appeal Board
Nguyen Anh Sang v. Torture Claims Appeal Board
Bui Thi Hoa v. Torture Claims Appeal Board
Tran Van Doan v. Torture Claims Appeal Board
Sri Musriah v. Torture Claims Appeal Board
Khan Md Imdad Ali v. Torture Claims Appeal Board
Singh Priysen v. Torture Claims Appeal Board
Roy Bina Rani v. Torture Claims Appeal Board
Tri Martiningsih v. Torture Claims Appeal Board
Pham Huu Tue v. Torture Claims Appeal Board
Kumar Vipin v. Torture Claims Appeal Board
Further hearings and rulings under HCAL 641/2026