Hua Thi Huong and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1511/2026

[2026] HKCFI 5977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1511 of 2026

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 oral submissions by the 1st Applicant and the 2nd 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, her son, aged 10 (“the son”). They are illegal immigrants. The mother gave birth to the son in Hong Kong. In the applications discussed below, the mother acts for herself and as the guardian or the next friend of her son, as the case may be.

2.They applied for non-refoulement protection to the Director of Immigration (“the Director”). By Notice of Decision dated 31 July 2018 (“the Director’s Decision”) the Director refused their claim. They appealed to the Torture Claims Appeal Board (“the Board”). By Decision dated 10 April 2019 (“the Board’s Decision 2019”), the Board dismissed their appeal.

3.They applied for leave to apply for judicial review of the Board’s Decision 2019.

4.By an Order by consent dated 30 May 2025, the Board’s Decision 2019 was set aside and quashed. The applicants’ appeal was ordered to be re-assessed by another different constituted Board.

5.On 20 May 2026, another constituted Board held a hearing for the applicants. The mother had given oral evidence. By Decision dated 2 July 2026 (“the Board’s Decision 2026”), the Board dismissed their appeal.

6.The applicants jointly apply for leave to apply for judicial review of the Board’s Decision 2026. Their joint application relies upon the facts of the mother.

7.The mother appeared before the Court on 14 October 2026.

8.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.

9.The Board’s Decision 2026 was written in Chinese whereas this Form CALL-1 is written in English because the mother has attached a statement of grounds to Form 86 written in English.

The applicants  

10.The applicants are nationals of Vietnam.

11.The applicants lodged a non-refoulement claim, on the basis that, if refouled, the mother will be harmed or killed by her ex-boyfriend’s wife, Hau, and her creditor because she was unable to repay her debt. The son will be adversely affected.

12.Details of the facts are set out in the Board’s Decision 2026. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL001511_2026_files/the_Board's_Decision.pdf

The Director’s Decision

13.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”).

14.By way of the Director’s Decision, the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s Decision 2026

15.The applicants appealed the Director’s Decision to the Board.  On 20 May 2026, the Board conducted an oral hearing for their appeals. The mother had given evidence and answered the Board’s questions.

16.Having considered the evidence, the Board made the findings below.

(1)  As to the mother, her evidence was not reliable because she had given different evidence to the immigration officer and to the Board. The Board did not believe she will face any real risk of harm if she returns to Vietnam as she does not even know the whereabouts of Hau, whose verbal threats were only empty threats. The Board therefore took the view that it was unlikely that she would harm the mother after 13 years. As to the creditor, he did not threaten the mother or had taken any action to harm her. [55]-[62]

(2)  As to the mother and the son, there was no evidence that they will face any real risk under the applicable risks; that state protection will be available to them [65] & [66]; and that internal relocation will be viable [76],

(3)  As to the son, although the mother said that the son will be discriminated upon his return to Vietnam, there was no evidence to support her allegation. [71] The mother further submitted that she did not want to live in the developing areas where her son’s well-being will be adversely affected. The Board considered that this is not a legitimate ground in support of his non-refoulement claim. [72]

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

Application for leave to apply for judicial review

18.The applicants filed Form 86 on 2 July 2026 for leave to apply for judicial review of the Board’s Decision 2026.

19.In support of their application, the mother has attached a statement of grounds to Form 86, in which she said that the Board’s Decision 2026 is unreasonable or irrational in the public law sense or is a result of procedural errors or unfairness; that she considers that there are sufficient reasons to support their non-refoulement claim; that they are genuine non-refoulement claimants and they fled their country to escape from danger to their lives.

DISCUSSION

20.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 2026 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).

21.The Court will bear in mind that the Board’s Decision 2026 should be examined with rigorous examination and anxious scrutiny.

22.The reasons raised under paragraph 19 are the mother’s bare assertions without any evidence in support. They are invalid to challenge the Board’s Decision 2026[1].

23.Before me, I asked the mother if there were any child specific issues, which were not put to the Board for consideration because they were not legally represented. The mother said that she has married a Hong Kong citizen and had given birth to a son and a daughter. They have the right of residence in Hong Kong. The son in this application does not have a right of residence in Hong Kong. She has not yet applied for a dependent’s visa. Before the Board, she and her son were not legally represented. She had told the Board her full story. Her main fear is her creditor if she returns to Vietnam with her son. She had told the Board that her son’s education will be a problem if he returns to Vietnam.

24.The Court of Appeal laid down the requirements of legal representation for the minor and separate assessment of the minor’s situation. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more venerable to the applicable risks than the parent.

25.The Court of Appeal in Re: Jasvir Singh & Ors  [2021] HKCA 53 relaxed the requirement of legal representation for the minor, and held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

26.The Board had separate consideration of the son’s issues. It found that there was no child specific issue in support the son’s application. The Court has also enquired with the mother on the similar issues. The mother’s submissions on the son’s issues do not support the son’s claim because they are not valid in support of any of the applicable risks. In my view, there is no error in law or procedural unfairness in the Board’s Decision 2026. The decisions of the Board do not appear to be irrational.

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

DISPOSITION

28.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision 2026. Accordingly, I dismiss their joint application.

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

Dated the 28^th 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