VU THI KHUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 978/2022

[2026] HKCFI 4143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 978 of 2022

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 the Applicant being absent in open court;

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

2.  There shall be no extension of time to the applicant to file the Leave Application out of time.

3.  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 21 September 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 27 May 2022 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 5 August 2021 rejecting the applicant's non-refoulement claim on the applicable grounds[1] (“Director’s Decision”). The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000978_2022_files/the_Board's_Decision.pdf

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

3.  In her Form 86, the applicant named the Board and the Director as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be amended accordingly.

4.  The basis of the applicant’s claim was that, if refouled to Vietnam, she would be harmed or killed by the loan shark for an outstanding loan. 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.

5.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 14 July 2026. A notice of hearing with a reminder[2] of the consequence of absence dated 18 June 2026 was sent to the applicant’s last known address by ordinary post. The applicant was absent from the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number before the hearing but to no avail. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, and that the applicant had been separately notified by phone, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

6.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[3] 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[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In her Form 86, the applicant averred that the Board’s Decision was unsafe an unreliable. The supporting affirmation provided no grounds at all.

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.[5] In the present case, the Board found that the applicant would not be subjected to risks of harm as it found that the creditor had no serious intention to carry out the threats. It also found that the past ill-treatment did not meet the requisite level of severity. The Board also found that state protection 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 Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The only averments in the applicant’s Form 86 were vague and did not condescend to particulars. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

Whether to grant extension of time

10.  Furthermore, there is a delay of in the filing of the Leave Application. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. This application is late for about 3 weeks.

11.  Although I do not regard the delay as significant, the applicant shall still be required to provide an explanation for the delay. However, none was provided. In the absence of reason for the delay, and importantly, the lack of merits, I refuse to exercise my discretion to grant extension of time.

Orders

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

13.  There shall be no extension of time to the applicant to file the Leave Application out of time.

14.  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