TRAN THI THANH LOAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 54/2026

[2026] HKCFI 3867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 54 of 2026

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;

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 7 January 2026, 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 December 2025 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 6 November 2026 (“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/2026/HCAL000054_2026_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.  In the Form 86, the applicant named the Board and the Director as the proposed respondents without naming any interested party. As the Board should have been the proper putative respondent and the Director the putative 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 her husband’s mistress and her family as the applicant had wounder her in a confrontation with her. 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.  On 20 April 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 her judicial review application. Enclosed with the letter was a signed hand-written note in English dated 16 April 2026. In the note, the applicant stated that she would like to withdraw the Leave Application as it was safe for her to return home. 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[1]. 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[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 averred that the Board’s Decision was unfair and unreasonable and that the Board was procedurally unfair by having placed too much reliance on the COI but failed to take into account her personal background. In the supporting affirmation, the applicant 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.[3] In the present case, the Board found that the applicant’s evidence was unreliable and unconvincing. It did not accept the applicant’s claims about the mistress and her powerful family. Even if the Board were to accept the applicant’s evidence, it 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.

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 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].

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.  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.

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