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HCAL 1569/2021
[2026] HKCFI 2862
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1569 of 2021
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BETWEEN
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Pham Thi Van |
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 (Non-Refoulement Claims) Lewis Law:
1. The Form 86 be amended to (i) name the Board as the only putative respondent; (ii) the Board’s Decision dated 12 August 2022 as the decision sought to be challenged; and (iii) the Director of Immigration as a putative interested party; and
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. By a Form 86 filed on 12 November 2021, the Applicant sought leave for judicial review of two decisions dated 13 September 2021 and 20 September 2021. The Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“DI”) were named as two putative respondents.
2. From a reading of the documents exhibited to the Applicant’s supporting affirmation and obtained from the Board’s secretariat, it seems DI made a first-tier decision on the Applicant’s claim on 13 September 2021, the Applicant then lodged a notice of appeal/petition on 20 September 2021, the Board heard the appeal/petition on 21 December 2021 and the Board gave a written decision on 12 August 2022 to dismiss the appeal/petition (“the Board’s Decision”).
3. In other words, when the Applicant filed the present Form 86, the DI had rejected her non-refoulement claim, an appeal/petition had been lodged but was not yet decided. It was an abuse of process to file the present Form 86 in November 2021 when the alternative avenue of the Board’s process was not yet completed. For this reason alone, this Court can dismiss this leave to apply for judicial review application right away.
4. In the oral hearing of this Court application on 13 January 2026, I informed the Applicant of the above situation. She indicated, through an interpreter, that she understood the situation. She however requested me to consider the Board’s Decision delivered after her filing of the Form 86 in view of her special situation, including the age and health condition of her mother.
5. I do not see any special circumstances. However, given the Board’s Decision has been given and given for some time, I decided to adopt a pragmatic approach and amend, on my own motion, the Form 86 to treat the present challenge as a challenge against the Board’s Decision dated 12 August 2022, which was given 9 months after the filing of the Form 86: see paragraph 1 of the above order. The Applicant understood and agreed to such. A copy of the Board’s Decision can be seen by the following hyperlink[1].
6. As the Form 86 actually pre-dated the Board’s Decision, certainly there was no argument against the substance or procedural fairness of the Board’s Decision in the Form 86 and its supporting affirmation. In the oral hearing before this Court, I gave the Applicant a chance to make submission but no substantive argument was provided. The Applicant just said her debt in Vietnam had remained unsettled.
7. The Applicant’s claim was based on risk of ill-treatment from moneylender. The Board has carefully considered the Applicant’s assertions and found no sufficient evidence establishing risk under any of the applicable ground.
8. It is trite that judicial review is not a rehearing of the merits of a non-refoulement claim. In the absence of any valid argument that the Board had committed a legal error, been irrational in its reasoning and conducted its procedure unfairly, this Court cannot intervene.
9. I have considered the Board’s Decision vigorously, but am unable to detect any reasonable argument that it should be quashed. This application for leave to apply for leave is therefore dismissed.
Dated the 21st day of May 2026
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(Wilinda YIU)
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 21st May 2026
Pham Thi Van
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 21st May 2026
Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18788/21/9/140/V3075
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1189/21 (formerly RBCZ 350/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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