VU XUAN MAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 1242/2025, [2026] HKCA 197

On Appeal From [2025] HKCFI 6365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1242 OF 2025

(ON APPEAL FROM HCAL NO 945 OF 2021)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 22 December 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review.

2.  The appeal has been fixed for hearing on 24 February 2026.  However, upon perusal of the papers, we are of the view that the appeal should be allowed without the need to hear the Applicant.  Both the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) have indicated that they intend to adopt a neutral stance in this appeal.

3.  The reason for allowing the Applicant’s appeal is this.  In the Form 86 filed by the Applicant on 5 July 2021 in HCAL 945/2021 (“the First JR”), the Applicant identified the decision which he intended to challenge by way of judicial review to be the Director’s decision dated 28 June 2021 (“the Subsequent Claim Decision”). That was a decision of the Director refusing the Applicant’s request to make a subsequent claim for non-refoulement protection.  However, in the Call-1 Form dated 22 December 2025 ([2025] HKCFI 6365), the Judge treated the subject matter of the application as the Board’s decision dated 11 April 2019, whereby the Board dismissed the Applicant’s appeal against the Director’s decision dated 8 December 2017 rejecting the Applicant’s non-refoulement claim.  There was thus no consideration at all by the Judge of the Applicant’s intended challenge to the Subsequent Claim Decision.  The Applicant is entitled to have his application for leave to apply for judicial review in the First JR properly considered by the Court of First Instance.  In our view, there is no alternative but to allow his appeal against the Order.

4.  It has been brought to our attention that the Applicant has filed another Form 86 on 13 January 2026 in HCAL 145/2026 (“the Second JR”).  The subject matter of the intended challenge in the Second JR is also the Subsequent Claim Decision, and the application for leave to apply for judicial review has been fixed for hearing on 25 February 2026.

5.  We accordingly made the following orders:

(1)     The Applicant’s appeal against the Order is allowed, and the Order is set aside.

(2)     The hearing of the Applicant’s appeal scheduled for 24 February 2026 is vacated.

(3)     The Applicant’s application for leave to apply for judicial review in HCAL 945/2021 shall be remitted to the Court of First Instance for fresh determination, to be considered together with the Applicant’s application for leave to apply for judicial review in HCAL 145/2026 on 25 February 2026.

(4)     There be no order as to costs.