Case Document

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HCAL 1832/2025

[2026] HKCFI 5979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1832 of 2025

BETWEEN

	Nguyen Thi Lanh	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 documents only; or

consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The applicant is a national of Vietnam and she is an illegal immigrant. She applied to the Director of Immigration (“the Director”) for non-refoulement protection on the basis that if refouled, she will be harmed or killed by her creditor because she was unable to repay her debt. The Director refused her claim because it was unsubstantiated.

2.The applicant appealed to the Torture Claims Appeal Board (“the Board”) by filing a notice of appeal on 17 February 2025.

3.Before the Board heard the appeal, the applicant sent a letter dated 21 March 2025 (“letter of withdrawal”) to the Board, indicating her wish to withdraw her appeal.

4.By letter dated 25 March 2025 (“the Board’s Decision”), the Board replied to the applicant, informing her that since she had filed her letter of withdrawal, no further action will be taken by the Board in respect of her appeal.

5.By Form 86, the applicant applied for leave to apply for judicial review of the Decision dated 6 February 2025 of the Director of Immigration (“the Director’s Decision”).

6.In order to find out why the applicant had written to the Board for withdrawing her appeal, and why she applied to the Court for leave to apply for judicial review of the Director’s Decision, the Court fixed a hearing for her. However, she was absent at the hearing on 14 October 2025.

7.There is no evidence before the Court why she had applied for leave to apply for judicial review of the Director’s Decision. It appears that the applicant’s application to the Board for withdrawal of her appeal was made out of her own accord without any undue influence, which will vitiate her withdrawal.

8.Under section 37V of the Immigration Ordinance, Cap. 115 (“the Ordinance”), the applicant’s non-refoulement has been finally determined.

Section 37V. When torture claim is finally determined

(1)  Subject to subsections (2), (3), (4) and (5), a torture claim is finally determined once a decision on the claim is made by an immigration officer under section 37ZI.

(2)  For a torture claim rejected by a decision under section 37ZI(1)(b), the claim is finally determined—

(b)  when a notice to withdraw the appeal under section 37ZTA is received by the Appeal Board or the appeal has been disposed of (if an appeal has been lodged against the decision). (Amended 7 of 2021 s. 7)

9.The applicant’s application should be dismissed on 2 reasons. The first reason is that the application for judicial review of the Director’s Decision is to circumvent the Board, which is an abuse of the two-tier administrative structure of the Ordinance. The Court of Appeal in Sudarmanto v Torture Claims Appeal Board; and Director of Immigration [2026] HKCA 703 held:

“10. As provided under s.37ZR of the Immigration Ordinance, Cap 115 (“Ordinance”), it was open to the Applicant to appeal against the Director’s Decision to the Board, but he did not do so. He had not exhausted all the alternative remedies before seeking to invoke the supervisory jurisdiction of the High Court by way of judicial review. The Judge correctly pointed out that the Applicant’s attempt to circumvent the appeal process before the Board was an abuse of the two-tier administrative structure under the Ordinance. We are unable to see any reason why the Applicant should be allowed to bypass this statutory appeal process and apply to the High Court directly for leave to apply for judicial review of the Director’s Decision (see Yuliani v Director of Immigration [2022] HKCA 1831, [24]).”

10.The second reason is that the Board’s Decision is simply correct under section 37V of the Ordinance.

11.Accordingly, the applicant’s application is dismissed.

Dated the 28^th day of October 2026

(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 the Applicant’s 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 28/10/2026 Nguyen Thi Lanh 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 28/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 25635 Director of Immigration Putative Interested Party’s ref. no.: INVN-0000242-24 (CZ) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)