|
HCAL 1402/2023
[2026] HKCFI 1585
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1402 of 2023
|
BETWEEN
|
| |
Le Thi Duyen |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board / |
Putative |
| |
Non-Refoulement Claims Petition Office |
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
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 11 August 2023, 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 February 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 9 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/2023/HCAL001402_2023_files/the_Board's_Decision.pdf
2. In the 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 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, she would be harmed or killed by the creditor and his henchmen 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 26 September 2024, the applicant sent a letter written in English to the court, seeking for the withdrawal of the Leave Application, stating that it was safe for her to return home. On 30 September 2025, 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 handwritten letter in English dated 24 September 2024. The contents of this letter were largely the same as her earlier letter to court. On 17 October 2024, the same section of the Immigration Department enclosed the applicant’s handwritten letter in English dated 14 October 2024, which also repeated her application for the withdrawal of the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.
Discussion
5. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is 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 grounds set out in the applicant’s Form 86 were mostly in relation to the Director’s Decision. For those concerning the Board’s Decision, the applicant loosely averred that the Board had acted unreasonably by having relied too heavily on the COI without taking into account her personal background and experience. The supporting affirmation provided no such grounds.
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 the applicant would not face a real risk of serious harm if refouled as the past ill-treatment did not reach the minimum level of severity. The Board further found that internal relocation was reasonably viable. 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 written grounds set out in the Form 86 were vague and general and did not condescend to particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. 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 about 3 months. The applicant provided no explanation at all for the delay. In the circumstances, 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.
Recent Removal
11. By fax dated 28 October 2025, the Director informed the court that the applicant had been repatriated on 19 February 2025.
Orders
12. The Form 86 be amended on the court’s own motion.
13. There shall be no extension of time granted to the applicant for the filing of the Form 86.
14. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 27th day of March 2026
| |
(Alfred Chan)
for Registrar, High Court
|
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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 27/3/2026
Le Thi Duyen
Applicant’s ref. no:
Nil. |
|
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 27/3/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18138
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 326/21 (formerly RBCZ/10326/21/)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|