NGUYEN THI DUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 581/2024

[2026] HKCFI 3196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 581 of 2024

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. 

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 11 April 2024, 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 2 April 2024 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 19 October 2023 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000581_2024_files/the_Board's_Decision.pdf

2.  Notwithstanding that both the Director’s Decision and the Board’s Decision are in the Chinese language, this court believes that it is expedient to render its decision in English as both the Form 86 and the supporting affirmation were prepared in the English language. 

3.  In the Form 86, the applicant named the Board as well as the Director the proposed respondents and did not name any interested party.  As the Board should have been the proper putative respondent and the Director the proper putative interested party, the Form 86 shall be amended on the court’s own motion. 

4.  The basis of the applicant’s claim was that, if refouled to Vietnam, she would be harmed or killed by the creditor and his henchmen for the outstanding 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.  

5.  The applicant has requested for an oral hearing.  On 5 February 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (3) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw her judicial review application.  Enclosed with the said letter was the applicant’s signed memo dated 4 February 2026 handwritten in the Chinese language bearing a Hong Kong Government Interpreter’s signature. In the memo, the applicant stated that she would like to withdraw the Leave Application as the issues at home had been resolved.  In the circumstances, this court will dispose of the Leave Application on paper. 

Discussion

6.  A leave application operates as a ‘filtering’ process.  Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore 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[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  In the applicant’s Form 86, the applicant averred unreasonableness and procedural unfairness.  The supporting affirmation provided no such grounds. 

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.[4] In the present case, the Board accepted the applicant’s evidence regarding the loan and the pursuits by the creditor for repayment.  However, the Board found that the creditor had no real intention of harming her.  It also found that the past ill-treatment failed to meet the requisite level of severity.  The Board therefore concluded that the applicant would not face a real risk of harm if refouled.  It further found that state relocation and 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. 

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 grounds that applicant provided in her Form 86 were general allegations without particulars.  Hence, I find that 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 any realistic prospects of success such that would enable this court to grant leave[5].

Withdrawal application

10.  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. 

Recent Removal

11.  On 20 April 2026, before the applicant was removed, she signed a standard form memo to the court, stating that she “chose not to provide any correspondence address for communication with the court and service of court documents.” 

Orders

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

13.  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