VU PHI HUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 459/2026

[2026] HKCFI 3868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 459 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.  There shall be no extension of time granted to the applicant for the filing of the Form 86.

3.  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 25 February 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 1 March 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 9 December 2021 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/2026/HCAL000459_2026_files/the_Board's_Decision.pdf

2.  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 putative respondent and the Director the proper putative interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Vietnam, he 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.

4.  The applicant has requested for an oral hearing. On 13 May 2026, the applicant filed an affirmation together with a letter, applying for the withdrawal of the Leave Application. In both documents, the applicant stated that he would like to withdraw the Leave Application as it was safe for him to return home, that he made the withdrawal application out of his free will and that he understood the consequences of the withdrawal. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.  The 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.

6.  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 that the Board’s decision was unreasonable and procedurally unfair as the Board had placed too much reliance on the COI but failed to take into account his personal background. It also averred that the Board was procedurally improper and unfair when assessing his evidence. The supporting affirmation 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.[4] In the present case, the Board found that the applicant would not be subjected to harm if refouled. This is because the Board found that the applicant had never been assaulted by the loans hark and his subordinates. Thus, the Board found that the alleged past ill-treatment failed to 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 grounds the applicant provided in the Form 86 were vague and general 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].

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 years, which is extremely lengthy. The applicant has not provided any reason for the substantial delay. In the circumstances, I’d be disinclined to grant leave for 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.  The Form 86 be amended on the court’s own motion.

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

13.  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