Vu Thi Oanh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1208/2023

[2026] HKCFI 2182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1208 of 2023

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 Levy:

1.  The Form 86 be amended on the court’s own motion.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Background

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 18 July 2023, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 10 July 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 27 April 2022 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001208_2023_files/the_Board's_Decision.pdf

2.Notwithstanding that both the Director’s Decision and the Board’s Decision are in Chinese, this court is satisfied that it is expedient to render its decision in English as both the Form 86 and the supporting affirmation were prepared in the English language.

3.In the Form 86, the applicant named both the Board and the Director as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 shall be amended accordingly on the court’s own motion.

4.The basis of the applicant’s claim was that, if refouled to Vietnam, she would be harmed or killed by the loan shark and his henchmen for an unpaid loan. The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

5.The applicant has requested for an oral hearing. On 22 January 2026, the applicant filed an affirmation together with a letter, applying for the withdrawal of the Leave Application. In both of the documents, the applicant stated that she would like to withdraw the Leave Application as it was safe for her to return home, that she made the withdrawal application out of her free will and that she understood the consequences of the withdrawal. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

6.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the applicant’s Form 86, the applicant averred procedural unfairness and unreasonableness in the Board’s Decision. The supporting affirmation provided no such grounds.

8.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[4] In the present case, the Board found that the applicant’s claims regarding the loan and the threats and attacks from the creditor not credible. The Board found that the applicant had fabricated the story to apply for non-refoulement. In any event, the Board further found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

9.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant’s averments in the Form 86 were vague and did not condescend to particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[5].

Withdrawal application

10.Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Order

11.The Form 86 be amended on the court’s own motion.

12.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 30^th day of April 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