PHAM NGOC ANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1871/2020

[2025] HKCFI 2667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1871 of 2020

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 Leave Application be dismissed.

Observations for the Applicant:

Background

1.  By prescribed Form 86 filed on 18 September 2020, 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 8 May 2018 (“Board’s Decision”) dismissing the applicant’s appeal against two decisions of the Director of Immigration (“Director”) respectively dated 23 August 2016 and 2 March  2017 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/2020/HCAL001871_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named both the Board and the Director as the proposed respondents and interested parties. As the Director should have been the proper respondent and the director the interested party, the Form 86 will be amended on the court’s own motion.

3.  The basis of the applicant’s claim is that he would be harmed or killed by his creditor if he were to be refouled. 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.

4.  The applicant has not requested for an oral hearing.  However, on 19 May 2025, the court received a memo from the Removal Assessment and Litigation (Removal and Deportation) Section of the Immigration Department. Enclosed with the said memo is hand-written letter in Chinese dated 15 May 2025 signed by the applicant as well as the interpreter. In the said letter, the applicant asked for the withdrawal of the Leave Application.  In the circumstances, this court will dispose of the Leave Application on paper.

5.  In this case, notwithstanding that the Director’s decision, the Board’s Decision as well as the applicant’s letter for withdrawal are in the Chinese language, I find it convenient to prepare the Form Call-1 in English as the Form 86 and the supporting affirmation were in English.

Discussion

6.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.^[1] It is 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 and the supporting affirmation, no such grounds had been advanced.

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 considered the applicant’s appeal on papers after the applicant was absent from the hearing. Having considered the written documents, the Board rejected the credibility of the applicant’s evidence, and did not find that the alleged loan existed. Thus, the Board rejected the applicant’s claim. The Board further found that state protection was available and that internal relocation was 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.

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 has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86. This, plus an absence of explanation for the significant and inordinate delay of about 2 years for the issuance of the Leave Application, this court is not satisfied that the applicant’s intended challenge to the Board’s Decision is  reasonably arguable with any realistic prospects of success such that would enable this court to grant leave^[4].

Withdrawal application

10.  In his letter seeking for withdrawal of the Leave Application, the applicant stated he would like to return to his home country as soon as possible as the problem had been solved and that it was safe for him to return.

11.  Apart from the application to withdraw the Leave Application, 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.

Order

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

13.  The Leave Application 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