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HCAL 1149/2022
[2026] HKCFI 3034
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1149 of 2022
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BETWEEN
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Dang Trung Kien |
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 Levy:
1. The Form 86 be amended on the court’s own motion.
2. There shall be no extension of time granted to the applicant for the filing of the Form 86.
3. 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 26 October 2022, 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 24 June 2022 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 28 June 2021 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001149_2022_files/the_Board's_Decision.pdf
2. In the Form 86, the applicant named the Board as well as the Director as the proposed respondents and did not name any proposed 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 accordingly on the court’s own motion.
3. The basis of the applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by the money lender creditor for an unpaid 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.
4. On 5 March 2026, the court received the applicant’s handwritten letter in English requesting for the withdrawal of the Leave Application as he wanted to go home. On 17 March 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 his judicial review application. Enclosed with the said letter was the applicant’s signed hand-written memo in Chinese dated 11 March 2026. In the memo, the applicant stated that he would like to withdraw the Leave Application as the issues at home had been resolved and it was safe for him to return home. In the circumstances, this court will dispose of the Leave Application on paper.
Discussion
5. A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision[1]. It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
6. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 provided no such grounds. In the supporting affirmation, the applicant averred that the Board’s Decision was unsafe and wrong.
7. 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.[3] In the present case, the Board found that there was no evidence of the Loan and the attacks by the Creditor. The Board further found that the past ill-treatment did not meet the requisite level of severity. The Board further found that state protection 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.
8. 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 applicant’s assertions made in the Form 86 were only bare assertions without any particulars. Hence, 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[4].
9. Another matter I need to consider is the delay. 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. The applicant was late for more than 1 month. Although the delay cannot be regarded as lengthy, the applicant shall still be required to provide good reason. There was none. Hence, I’d be disinclined to grant leave for an extension of time.
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.
Orders
11. The Form 86 be amended on the court’s own motion.
12. There shall be no extension of time granted to the applicant for the filing of the Form 86.
13. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 5th day of June 2026
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( Alfred CHAN )
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 5/6/2026
Dang Trung Kien
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 5/6/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18226/21/7/26/V2909
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 339/21 (formerly RBCZ 10262/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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