VU THI TUYET v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2256/2023 and HCAL 2226/2025

(Heard together)

[2025] HKCFI 5917

HCAL 2256/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2256 of 2023

_____________

AND

HCAL 2226/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2226 of 2025

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;

HCAL 2256/2023

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.

HCAL 2226/2025

The applicant’s application for leave to issue the application for judicial review be dismissed.

Observations for the Applicant:

Introduction

HCAL 2256/2023

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 15 December 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 7 December 2023 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 31 July 2023 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL002256_2023_files/the_Board's_Decision.pdf

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

3.  The applicant’s claim was that, if refouled, she would be harmed or killed by her creditor for an unpaid loan.  The Board’s reasoning and findings were set out in detail in the Board’s Decisions 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.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 11 November 2025.  A notice of hearing with a reminder[1] of the consequence of absence dated 13 October 2025 was sent to the applicant’s last known address by ordinary post.  The applicant was absent from the hearing.  Before the hearing, phone calls were made to the applicant’s given telephone number and messages were left with her friend who answered the calls.  On the day of the hearing, phone calls were also made to the applicant but no to avail.  Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is 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.  The supporting affirmation did not provide any grounds.  In the Form 86, insofar as the complaints about the Board was concerned, the applicant stated that (i) the Board’s Decision was wrong and unreasonable; (ii) the Board had acted unreasonably and procedurally unfairly by placing too much reliance on the COI without taking into account her personal background; and (iii) the Board was procedurally improper by requiring the applicant to respond to questions that she was not in a position to offer any response.

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 creditor had no real intention to harm the applicant.  In any event, the Board found that the past ill-treatment did not meet the requisite level of severity.  The Board further found that internal relocation would be reasonably viable. Since the applicant never reported the threat of violent she suffered to any Vietnamese police or other government officials, the applicant could not establish that there was a lack of reasonable state protection.  Hence, the Board concluded that there was no real risk of harm, and dismissed her appeal.  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 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 written grounds the applicant provided in the Form 86 were 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 realistic prospects of success such that would enable this court to grant leave[5].

Orders

9.  The Form 86 be amended on the court’s own motion.

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

HCAL 2226 of 2025

Background

11.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 6 October 2025, the applicant applied for leave to apply for judicial review (“Subsequent Leave Application”).  The intended judicial review was against the decision of the Director dated 8 September 2025 (“Director’s Subsequent Decision”) refusing the applicant's request for making a subsequent claim.

12.  This application was listed to be heard with HCAL 2256/2023 together on 11 November 2025.  As stated above, the applicant was absent from the hearing.

13.  According to the Director’s Subsequent Decision, the applicant requested (“Request”) for making a subsequent claim for non-refoulement after the dismissal by the Board of her appeal against the Director’s Decision.  The Director, having considered the relevant statutory provisions for the making of a subsequent claim, refused the applicant’s Request.  In the Request, the applicant stated that she had some significant changes of circumstances since her previous claim had been determined by the Board.  The Director found that the applicant’s claim of the change of circumstances was only a bare assertion and speculation.  Having previously considered the availability of state protection and internal relocation, the Directed refused to accede to the applicant’s Request.

Discussion

14.  Applying the same legal principles stated in [5], [6] and [8] above, this court is satisfied that the Direction correctly applied the law and observed a high standard of fairness.  The Form 86 contained the same written grounds as the case stated above, and the supporting affirmation provided no grounds at all.  As I have stated above, the grounds that the applicant provided in the Form 86 were 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 realistic prospects of success such that would enable this court to grant leave[6].

Order

15.  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