DANG THI LUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 251/2026

[2026] HKCFI 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 251 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.  The applicant’s application for leave to apply for judicial review be dismissed.

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 26 January 2026, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Director (“Director”) dated 14 January 2026 (“Director’s Subsequent Decision”) refusing the applicant’s request (“Request”) for making a subsequent claim for non-refoulement under s.37ZO of the Immigration Ordinance. In an earlier decision of the Director dated 21 August 2017 (“Director’s Earlier Decision”), the Director rejected the non-refoulement claim under all applicable grounds[1].

2.  On 8 November 2019, the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dismissed the applicant’s appeal against the Director’s Earlier Decision (“Board’s Decision”). On 20 August 2025, this court (in [2025] HKCFI 3571) dismissed the applicant’s application to apply for judicial review against the Board’s Decision.

3.  In her Form 86, the Board named the Director as well as the Board as the proposed respondent. As the Director should have been the proper respondent, the name of the Board shall be struck out. The Form 86 be amended accordingly on the court’s own motion.

Background

4.  After the dismissal of her application for leave to apply for judicial review of the Board’s Decision, the applicant made the Request on 5 September 2025. The applicant was not represented in the Request.

The statutory provisions on subsequent claims

5.  Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

"Limitation on subsequent claim

(1)  Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)  A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)  In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

6.  The applicant submitted 2 letters and 8 items of documents to support the Request. The Request was based on the applicant’s claim that, if refouled, she would be harmed or killed by the creditors if refouled. The creditors were still looking for her.

Discussion

7.  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 Director’s Decision and the applicant’s materials adduced.

8.  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 Form 86 and the supporting affirmation provided no such grounds.

9.  As the applicant had requested for a hearing, the court scheduled a hearing on 26 February 2026. The applicant appeared in person, and informed the court that she wanted to withdraw the Leave Application as her husband who was previously detained in Hong Kong had returned to Vietnam. She confirmed that she made the application to withdraw voluntarily and that she understood the consequences of the withdrawal.

10.  In the Director’s Subsequent Decision, after the Director had taken into account the facts and findings he made in the Director’s Earlier Decision, the Director found that the latest Country of Origin Information the applicant submitted was no specific, and did not support the applicant’s claim of risk of harm. The Director found that the applicant’s claim of the change of circumstances was not substantiated. The Director found that the Request had no realistic prospect of success and refused the applicant’s Request. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Withdrawal Application

12.  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

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

14.  The applicant’s application for leave to apply for judicial review 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