Nguyen Thi Huyen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2566/2025

[2026] HKCFI 3453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2566 of 2025

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Order by Deputy High Court Judge Levy:

1.   There shall be no extension of time granted to the applicant for the filing of the Form 86.

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 19 November 2025, 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 29 July 2025 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 19 March 2025 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim based on all applicable grounds.  The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002566_2025_files/the_Board's_Decision.pdf

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

3.The basis of the applicant’s claim was that, if refouled to Vietnam, she would be harmed or killed by the moneylender creditor 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.

4.On 17 March 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (3) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw his judicial review application.  Enclosed with the said letter was the applicant’s signed hand-written memo in Chinese dated 11 March 2026.  In the memo, the applicant stated that she would like to withdraw the Leave Application as the issues at home had been resolved and it was safe for her to return home.  In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.A leave application operates as a “filtering” process.  Hence, there is no requirement or expectation to give elaborate reasons for my decision[1]. It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], 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 set out 8 grounds, namely, error of law; failure to adequately consider evidence; inconsistency in the application for credibility assessment; failure to recognize the context of debt-related threats; misapplication of internal relocation principle; violation of procedural fairness; inadequate consideration of COI; and evidential burden not met.  In the supporting affirmation, the applicant provided no such grounds.   

7.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.[3] In the present case, the Board found that the applicant’s evidence was not reliable.  It further found that the past ill-treatment did not meet the requisite level of severity.  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.

8.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 assertions made in the Form 86 were only bare assertions without any particulars.  Hence, 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[4].

9.Another matter I need to consider is the delay.  Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision.  The applicant was late for about 3 weeks.  Although the delay cannot be regarded as lengthy, the applicant shall still be required to provide good reason.  There was none.  Hence, I’d be disinclined to grant leave for an extension of time.

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.

Orders

11.There shall be no extension of time granted to the applicant for the filing of the Form 86.

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

Dated the 26^th day of June 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