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HCAL 223/2022
[2026] HKCFI 2223
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 223 of 2022
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BETWEEN
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Pham Thi Mai |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Levy:
1. There shall be an extension of time to the applicant to file the Leave Application out of time.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Background
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 20 April 2022, 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 20 January 2022 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 3 August 2021 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/2022/HCAL000223_2022_files/the_Board's_Decision.pdf
2. The basis of the applicant’s claim was that, if refouled to Vietnam, she would be harmed or killed by her creditor 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.
3. On 6 January 2026, the applicant filed a hand-written affirmation drafted in Chinese applying for the withdrawal of the Leave Application. In the affirmation, the applicant stated that her debt problem had been resolved, and that she no longer faced any risks of harm back home. She further confirmed that she made the withdrawal application voluntarily. In the circumstances, as no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.
Discussion
4. 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.
5. 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. The applicant’s Form 86 and the supporting affirmation provided no such grounds.
6. 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 relating to her claims was unreliable and questionable. The Board did not accept her evidence that she had borrowed money, and had been threatened and assaulted by a creditor in Vietnam. The Board further found that 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.
7. 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 or otherwise. 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].
8. Technically, the Leave Application is late for 1 day. I am prepared to accept that it is a technical breach, and waive the delay.
Withdrawal application
9. 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
10. There shall be an extension of time to the applicant to file the Leave Application out of time.
11. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 30th day of April 2026.
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( Alfred CHAN )
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 30/4/2026
Pham Thi Mai
Applicant’s ref. no:
Nil. |
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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 30/4/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18496/21/8/84/V2984
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 874/21 (Formerly RBCZ 10493/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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