Case Detail

HCAL 1030/2019

[2025] HKCFI 3244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1030 OF 2019

____________

BETWEEN
	Doan Thi Ha	1^st Applicant
	Pham Ky Duyen	2^nd Applicant
	Pham Tue Lam	3^rd Applicant
	Pham Dieu Linh	4^th Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

____________

Before:

Deputy High Court Judge To in Chambers

Date of Decision:

1 August 2025

______________

D E C I S I O N

______________

Introduction

1. This is the Applicants’ application by summons filed on 11 July 2025 for extension of time to appeal the order of this Court dated 11 September 2023 (the “Order”) refusing to grant them leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”). The application is supported by the affirmation of the 1^st Applicant who is the mother of the other three applicants and represented them in the leave application.

The Law

2. Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^{^[1]}, the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

Length of delay and explanations for the delay

3. The application for extension of time to appeal was filed more than one year and ten months after the date of the Order sought to be challenged. The Applicants are one year, nine months and twenty-five days out of time. The delay is very substantial. The 1^st Applicant’s explanation for the delay is that when the Order was issued, she was serving her sentence in Lo Wu Correctional Institution and did not know that their leave application had been refused. After serving her sentence, she was detained again Nei Kwu Correctional Institution. After she was released, she did not know how to appeal until he had the assistance of her friends. There are gaps in her evidence as to when she was informed of the outcome of her leave application, when she moved from one correctional institution to another and when she was ultimately released. Assuming for her greatest benefit that she only learned about the outcome of the leave application after her ultimate release from Nei Kwu Correctional Institution and for reason which will become obvious in the next following two paragraphs, such information has no significance. Hence, no such enquiries were made.

4. The Applicants filed her Form 86 on 16 April 2019 giving an address in Lai Chi Kok Road as their contact address. They never informed the Court of any change of their address. On 22 March 2022, the Court gave them directions for the further conduct of their leave application by letter sent to them by post at their Lai Chi Kok Road address. They did not respond. Out of abundance of caution, before processing their leave application in December 2022, the Court enquired from the Immigration Department about their up-to-date address. The Immigration Department advised that the 1^st Applicant resided at an address in Wong Chuk Street, while the other three resided in the Lai Chi Kok Road address. On 11 September 2023, the Court issued the Order and Form CALL-1 to them by post to both the Lai Chi Kok Road address and the Wong Chuk Street address. Understandably, the 1^st Applicant did not receive the documents as she was in custody. There is nothing to suggest that the other three Applicants did not. They are minors born in 2017 and were six and half years old at the time of issue of the Order. However, they must be living under the care of some adult who would have informed the 1^st Applicant of the receipt of the Order and Form CALL-1. Again, assuming for the benefit of the Applicants that the 1^st Applicant had not been so informed, the question remains whether the 1^st Applicant and the other three Applicants whom she represents should be released of their duty and liability for the 1^st Applicant’s failure in informing the Court of her change of address.

5. As was held by the Court of Appeal in Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], it is the applicant’s obligation to keep the court informed of his means of contact. If he does not, he has to bear the consequence which his failure brings. The 1^st Applicant sought to rely on her detention as a ground for being released of the consequence of her delay, but she had never informed the Court of her change of address not only from Lai Chi Kok Road to Wong Chuk Street, but more importantly, also from Wong Chuk Street to the two different Correctional Institutions. This very inordinate delay was occasioned by her failure to update the Court of her address. She has to bear the consequence which her failure brings. She and the other three Applicants have no reasonable explanation for the delay. Such delay is very substantial.

Prospect of success of the intended appeal

6. The reasons for refusing the Applicants’ leave application are summarised in paragraphs 20 to 22 of the Form CALL-1. Basically, the Board found the 1^st Applicant incredible and rejected her evidence. It found she had failed to prove the factual basis in support of her claim. This finding is applicable to the claim of the 2^nd to 4^th Applicants as their claim is hinged on the 1^st Applicant’s. The Board also considered the 2^nd to 4^th Applicants’ child specific claim based on discrimination and the 2^nd and 3^rd Applicants’ claim based on their medical issues separately from the 1^st Applicant’s. The Board rejected their claim due to lack of evidential support and on the basis of country of origin information. These are finding of facts by the Board. Applying the law applicable to non-refoulement protection, the Board found all the four Applicants are not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism. Insofar as these are finding of fact, they are solely within the realm of the Board which the court in a judicial review may not intervene. Insofar as they are finding of the law, they are absolutely correct.

7. The Applicants have not advanced any grounds of their intended appeal. They did not state what is wrong with the Board’s or this Court’s decision. On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Conclusion

8. The delay is very substantial, the intended appeal has no prospect of success. As such, there is no need to consider prejudice to the respondent if an extension of time were granted. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. For all these reasons, the application for extension of time to appeal is refused.

	( Anthony To )
	Deputy High Court Judge

The Applicants are not represented

[1] CAMP 64/2020; [2020] HKCA 844

[2][2018] HKCA 460

[3][2018] HKCA 439 at paragraph 15

HCAL 1030/2019

[2023] HKCFI 2307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1030 of 2019

BETWEEN
	Doan Thi Ha	1^st Applicant
	Pham Ky Duyen	2^nd Applicant
	Pham Tue Lam	3^rd Applicant
	Pham Dieu Linh	4^th Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or
consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1. Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and
2. Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1. This is the Applicants’ application by Form 86 filed on 16 April 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 29 March 2019 (the “2019 Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 January 2017 refusing her claim for non-refoulement protection (the “2017 Notice”). The 1^st Applicant is the mother of the 2^nd to 4^th Applicants who are triplets born on 2 June 2017 in Hong Kong. At the time of filing of the leave application, the Board has only made the 2019 Decision in respect of the 1^st Applicant and no decision has yet been made in respect of the 2^nd to 4^th Applicants until 18 September 2020 (the “2020 Decision”) one and half years later despite they were improperly named as co-applicants. By the 2020 Decision, the Board dismissed the 2^nd to 4^th Applicants’ appeal against the decision of the Director in his Notice of Decision dated 31 July 2019 refusing their claim for non-refoulement protection (the “2019 Notice”). It is the intention of the 1^st Applicant who represents the 2^nd to 4^th Applicants that their leave applications in respect of the 2019 Decision and the 2020 Decision shall be dealt with together. Obviously, the 2^nd to 4^th Applicants’ claim is founded on the same facts as the 1^st Applicants. In view of their familial relationship and the commonality in the issues raised, the Court also considered it expedient to do so and granted leave to amend the leave application by adding the 2020 Decision as one of the decisions in respect of which relief is sought and grant the 2^nd to 4^th Applicants leave to make the leave application out of time.

2. As the 2^nd to 4^th Applicants are minors, the 1^st Applicant had been advised by letter of this Court dated 26 May 2022 to seek legal representation whether by the Legal Aid Department or private solicitors. Over 10 months have lapsed since the date of the Court’s letter and the 1^st Applicant has not taken any further steps to arrange legal representation. Having considered the merits of the application, the Court regarded the absence of legal representation as a mere irregularity and proceeded with issuing of this Form CALL-1. The Applicants did not request an oral hearing. Having considered the nature of the application and issues raised, the papers, and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing, pursuant to Order 53 Rule 3(3) of the Rules of High Court (Cap 4A).

3. The 1^st Applicant is a Vietnamese national, now aged 29. She claimed she illegally entered Hong Kong via Mainland China on 27 April 2016. She surrendered to the Immigration Department on 28 April 2016 and raised her a non-refoulement claim. She also submitted claims on behalf of the 2^nd to 4^th Applicants by way of written signification on 25 March 2019, 10 April 2019 and 29 April 2019, respectively. In due course, their claims were assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4] and dismissed by the Director’s 2017 Notice and 2019 Notice. Their appeals against the Notices were respectively dismissed by the 2019 Decision and 2020 Decision of the Board.

The 1^st Applicant’s case

4. The following account of the 1^st Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance from the Duty Lawyer Service and the record of screening interview attended by her in the presence of her lawyer. In gist, she claims that she would be ill-treated or killed by her creditor named Manh for being unable to repay a debt owed to him.

5. The 1^st Applicant was born in Hai Phong, Vietnam. She is single and has received 13 years of formal education in Vietnam including one year in tertiary education in accounting. Soon after her graduation, she planned to open a garment shop in April 2015. In that connection, she borrowed 300 million Vietnamese Dong (“VND”) from Manh introduced to her by a common friend, VU. Manh is a loan shark with Mafia connection. The loan was intended to be a bridging loan of one month which she anticipated would be repaid by way of another loan from her elder brother and sister-in-law. Because of their common friend, Manh did not charge any interest. However, her brother and sister-in-law were unable to lend her the money because of their personal problems. The 1^st Applicant was unable to repay Manh. At first, Manh was accommodating and allowed her extension of time to pay until her business became profitable. Thus, the 1^st Applicant commenced her business in August 2015 and promised Manh a share of her profits. She invested the entire loan in her business and employed one assistant at a monthly salary of VND 3 million. However, since September 2015, Manh started demanding repayment every month, though on her request, he granted her extension of time to pay without threatening her.

6. In February 2016, Manh and five to seven of his henchmen came to the 1^st Applicant’s home. They tore her hair, assaulted her brother and damaged some of their personal belongings. They threatened to destroy her stock and kill her if she continued to delay repayment. The 1^st Applicant managed to escape in the confusion while her brother was injured.

7. The 1^st Applicant closed her shop in March 2016 and moved to her aunt’s place for refuge until she fled to Mainland China and then Hong Kong in April 2016.

8. Manh and his associates continued visiting the 1^st Applicant’s home once a month to demand repayment. They threatened to kill her if they found her but did not beat up her brother or family members.

9. The 1^st Applicant did not seek help from the Vietnamese police because the Vietnamese police was corrupt and would not help her without being paid a bribe. She does not consider internal relocation feasible as she does not know anybody outside of her village and Manh could locate her anywhere in Vietnam because of his Mafia connection.

The 2^nd to 4^th Applicants’ case

10. The 2^nd to 4^th Applicants’ is based on the majority of the background facts as set out in the 1^st Applicant’s NCF. Thus, their case is also based on the fear of harm as alleged by the 1^st Applicant plus the additional information submitted by the 1^st Applicant on their behalf, such as they will be in danger of being located by Manh if they are refouled to Vietnam. Specifically, the 2^nd and 3^rd Applicants claimed they had cardiac problems which require medical treatment which is only available in Hong Kong but not in Vietnam.

The Board’s finding in the 2019 Decision

11. An oral hearing was scheduled for the 1^st Applicant, but she did not attend. She did not respond to the Board’s request for explanation for her absence. The Board hence determined her appeal in her absence.

12. The 1^st Applicant’s case is so full of inconsistencies and contradictions that the Board found it inherently incredible. The Board was also prevented from addressing its concerns by the 1^st Applicant’s absence at the hearing and failure to respond. The Board therefore found it unreasonable that the 1^st Applicant having just graduated from high school and completed an accounting course, would have borrowed such a huge sum of money from a loan shark to start a business which she has no experience of. It found it difficult to accept that Manh who was initially supportive and accommodating in August 2015 would become impatient a month later and demand repayment; that Manh who had been accommodating would suddenly turn aggressive and assault the 1^st Applicant and her brother in February 2016; and that the 1^st Applicant would not seek assistance from their common friend to resolve her problem. More importantly, even accepting her evidence, the Board found the ill-treatment she suffered did not attain the minimum level of severity and doubted if Manh really wanted to harm her as he took no steps to look for her after the February 2016 attack other than visiting her home and did no harm to her brother either.

13. On the basis of authoritative and credible country of origin information, the Board found that while there are problems of police corruption, the Vietnamese government has achieved considerable results in combating police corruption. It rejected the 1^st Applicant’s claim that she could not obtain protection and that Manh could locate her anywhere in Vietnam through his Mafia network as speculative. The Board found adequate state protection available and internal relocation feasible.

14. In respect of Torture Risk, the Board found the 1^st Applicant had failed to establish that there are substantial grounds for believing that she would be subjected to torture within the meaning of “torture” under section 37U of the Immigration Ordinance, if returned to Vietnam. In respect of BOR 3 Risk, it found the ill-treatment suffered by the 1^st Applicant, which in any event did not attain a minimum level of severity, arose out of a private monetary dispute and was unrelated to any grounds protected under BOR 3 Risk. It was therefore not satisfied that she would face any genuine or substantial risk of being subjected to such ill-treatment, if refouled. In respect of BOR 2 Risk, the Board could find no evidence that suggests that the 1^st Applicant’s right to life under BOR 2 would be violated. In respect of Persecution Risk, it found the 1^st Applicant’s alleged fear of ill-treatment falls outside the protection of Persecution Risk ground as it would not be on account of any of the reasons protected under the under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol. The Board therefore came to the conclusion that the 1^st Applicant had failed to establish the factual basis in support of her claim for non-refoulement protection under any of the four applicable grounds under the USM and dismissed her appeal. Furthermore, the Board found in any event the 1^st Applicant could avoid the risk of harm by internal relocation.

The Board’s finding in the 2020 Decision

15. The 1^st Applicant attended the oral hearing and appeared on behalf of the 2^nd to 4^th Applicants. Except for their risk of being located and harmed by Manh and the 2^nd and 3^rd Applicants’ alleged medical issue, their case is based on the same facts as the 1^st Applicant’s. To that extent, it is hinged on the 1^st Applicant’s case. The Board considered it may not re-open the 1^st Applicant’s case. In effect, it rejected the 2^nd to 4^th Applicants’ case based on their fear of harm from Manh. Having rejected their case based on their fear of harm from Manh, the Board found that risk non-existent. As for the 2^nd and 3^rd Applicants’ alleged medical issue, it is just the 1^st Applicant’s bare assertion, not supported by any medical evidence. The Board therefore found there was no objective evidence that their conditions require such specialist cardiac treatment which is only available in Hong Kong. Furthermore, the Board actually found there is at least one well-known specialist cardiology hospital in Ho Chi Minh City capable of providing specialist service in cardiology. There is no substance in these two grounds specific to the 2^nd and 3^rd Applicants.

16. Though not so raised by the 2^nd to 4^th Applicants, the Board also considered their risk of discrimination by reason of their illegitimate status. It found from authoritative and credible country of origin information that as far back as 1996 illegitimacy was not considered to be at risk. The 2^nd to 4^th Applicants’ risk is further reduced by the fact that their natural parents have agreed to jointly take care of them. Furthermore, their natural parents are free to marry each other and legitimise their status.

17. For the above reasons and the same reasons as it stated in the 2019 Decision the Board found that the 2^nd to 4^th Applicants had failed to discharge the burden of proving their entitlement to protection under any of the four applicable grounds under the USM. Hence, it dismissed their appeals and confirmed the Director’s 2020 Notice.

Legal principles applicable to judicial review

18. 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[5].

Grounds for judicial review

19. The Applicants did not advance any grounds for judicial review in the Form 86. In their supporting affirmation, they reiterated their feared harm and danger to their lives, if returned to Vietnam. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicants’ complaint is that they disagreed with the finding of the Board that it is safe for them to return to Vietnam. In effect, this leave application is an appeal against the finding of fact by the Board dressed up as an application for judicial review. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

20. The 1^st Applicant is the sole factual witness in respect of the feared harm from Manh. She did not appear at the oral hearing scheduled for her appeal and declined giving explanation for her absence. Her case is so full of inconsistencies and contradiction that the Board found it inherently incredible and she did not attend the oral hearing to address the Board’s concerns. In the ultimate analysis, the Board found that she had failed to prove the factual basis in support of her claim. That also applies to the Board’s finding in respect of the 2^nd to 4^th Applicants’ case which is hinged on the 1^st Applicant’s case.

21. The Board also considered the child specific claim of the 2^nd to 4^th Applicants separately from their mother’s, ie the 1^st Applicant’s. It rejected the 2^nd and 3^rd Applicants’ claim based on an alleged medical issue due to lack of supporting evidence. It considered the 2^nd to 4^th Applicants’ risk of discrimination by reason of their illegitimate status but dismissed that risk on the basis of authoritative and credible country of origin information. It was on the basis of all these findings of facts that the Board found the Applicants’ feared risk of harm unlikely to materialize, that state protection is available and that internal relocation is feasible. Hence, the Board came to the conclusion that the Applicants are not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds. These findings of facts are exclusively within the province of the Board to make, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality.

22. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board had also considered the child specific claim of the 2^nd to 4^th Applicants separately from their mother. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, their leave application is refused.

Dated the 11^th day of September 2023.

( Allen LEE )
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 11 September 2023 Doan Thi Ha Pham Ky Duyen Pham Tue Lam Pham Dieu Linh Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11 September 2023 Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6100/17/2/99/V934 USM 16182/19/8/44/V2328 USM 16183/19/8/45/V2329 USM 16184/19/8/46/V2330 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2626/16 (Formerly RBCZ 11662/16) QA T/C 480/19 (Formerly RBCZ 10335/19) QA T/C 481/19 (Formerly RBCZ 10336/19) QA T/C 479/19 (Formerly RBCZ 10337/19) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]

DOAN THI HA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Related cases with same parties

Files (2)

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;