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

HCAL 744/2023

[2026] HKCFI 5400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 744 of 2023

BETWEEN

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 the Applicant being absent 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:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 17 May 2023, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 29 March 2023 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 30 June 2022 rejecting (“Director’s Decision”) the applicant's non-refoulement claim on the applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000744_2023_files/the_Board's_Decision.pdf

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

3.In her Form 86, the applicant named the Board and the Director as the proposed respondents and did not name any interested party. As the Board should have been the proper putative respondent and the Director the proper putative interested party, the Form 86 will be amended accordingly.

4.The basis of the applicant’s claim was that, if refouled to Vietnam, she would be harmed or killed by the loan shark for an outstanding loan. The Board’s 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.Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 15 September 2026. A notice of hearing with a reminder[2] of the consequence of absence dated 29 July 2026 was sent to the applicant’s last known address by ordinary post. On 8 September 2026, the notice of hearing was returned undelivered to the court. Upon the court’s further inquiries, the Immigration Department informed the court by fax dated 11 September 2026 that the applicant has absconded (meaning that the applicant has failed to report to the Immigration Department without any updated address) since 3 October 2024.

6.In the circumstances, I do not find it unfair to dispose of the Leave Application on paper without a hearing.

Discussion

7.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[3] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

8.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  In her Form 86, the applicant averred that the Board’s Decision was unreasonable and procedurally unfair, and that the Board placed too much reliance on the Country-of-Origin Information without considering her personal background and experience. The supporting affirmation provided no grounds at all.

9.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.[5]  In the present case, the Board found that the applicant’s evidence was not credible. In any event, the Board found that the past ill-treatment failed to meet the requisite level of severity. The Board also found that internal relocation would be reasonably viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The only averments in the applicant’s Form 86 were vague and did not condescend to particulars. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

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 September 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