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HCAL 1530/2021
[2025] HKCFI 3569
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1530 of 2021
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BETWEEN
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Hoang Thi Huong |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
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 to the applicant to file the application for leave to apply for judicial review.
3. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a Chinese “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 4 November 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the Chinese decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 28 September 2018 (“Board’s Decision”) dismissing the applicant's appeal against a Chinese decision of the Director of Immigration (“Director”) dated 27 December 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001530_2021_files/the_Board's_Decision.pdf
2. Notwithstanding the fact that all documents referred to above are in the Chinese language, I believe it is more convenient to render this decision in the Form Call-1 in English. This is because the hearing was held in English with the assistance of an English/Vietnamese interpreter. The applicant’s letter dated 18 July 2025 which will be referred to in [12] below was also written in English.
3. In her Form 86, the applicant named the Board as the interested party. As the Director should have been the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.
4. The basis of the applicant’s claim was that she would be harmed or killed by the triad-related loan shark for the unpaid loans. 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. At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 24 July 2025. As the applicant was in custody, a body order was issued to have the applicant brought up to attend the hearing.
Discussion
6. 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.
7. 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.
8. In her supporting, applicant reiterated the factual background of her claim. It was deposed that on 9 November 2018, the Director refouled her to Vietnam (after the Board’s dismissal of her appeal against the Director’s Decision). When she was back home, the loan shark went to her home to continue to pursue her for repayment of the loan with interest. She became even more fearful that the loan shark would kill her. Thus, on 5 March 2021 she fled Vietnam to seek protection in Hong Kong.
9. By way of background, when the applicant was in Hong Kong for the second time, she raised a subsequent claim before the Director. By a decision dated 26 October 2021, the Director dismissed the applicant’s subsequent claim.
10. At the hearing, this court asked the applicant whether she had any grounds she wished to submit in support of the Leave Application and the reason for her detention. The applicant stated that as she had failed to report to the Immigration Department at the scheduled time, she had been detained since April 2025. The applicant stated that she had written two English letters while she was in detention the week before the scheduled hearing. Since the court did not have copies of her letters, I asked the applicant to tell me what she had stated in the letters. The applicant said that she had requested to be sent back to Vietnam. When she was asked to clarify if she wanted to withdraw the Leave Application, the applicant did not confirm whether she wanted to withdraw or not but kept repeating that she wanted to be released from detention and that she was asking for bail. As the applicant was stating these confusing and contradictory responses, I noted that she kept looking at a woman who was sitting in the public gallery during the hearing. Upon inquiry, the applicant said that the woman was her friend. After the court had reminded her and that woman not to communicate with each other by any means, the hearing continued.
11. The applicant was then asked for the reason for the delay of the filing of the Leave Application. The explanation the applicant gave for the late filing of the Leave Application was confusing and incoherent. Broadly, she gave the reason of the repatriation back to Vietnam, her ignorance of the Board’s Decision due to the language difficulty, and not knowing where to find help.
12. After the hearing was concluded in the morning, this court then received the applicant’s letter. In the letter, the applicant requested “to cancel and withdraw” her case, and further stated that she wanted to go back to Vietnam as her “life is safe now”.
13. Upon receiving the letter, this court hastily convened a hearing in the late afternoon when the applicant was still held in the court building. I asked the applicant to confirm whether it was the letter she mentioned at the hearing in the morning, and she answered in the affirmative. As the applicant stated that the letter was prepared by a Philippine inmate with the assistance of an interpreter, I asked the interpreter in court to interpret the contents of the letter to the applicant. Afterwards, I asked the applicant if it was her true intention that she wanted to withdraw the Leave Application. She confirmed that she wanted to withdraw the Leave Application as she wanted to go back home as soon as possible. She stated that her aged mother-in-law in Vietnam had paid off all her debts after the latter had sold her land. She also confirmed that her application to withdraw was made willingly and freely, and that she understood the consequences of the withdrawal. When I asked the applicant why she did not tell the court of her withdrawal application at the earlier hearing in the morning, the applicant stated that she misunderstood the contents of the letter. She repeated that her intention was to withdraw and that she wanted to go home.
14. 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’s injuries from the loan sharks’ assaults were not serious. Thus, the Board found that there was no real risk of harm. The Board also found that the police would offer proper protection for harassment form debt-related matters. In any event, the Board found that the problem the applicant faced from the loan sharks was only a private matter and did not involve the state. The Board concluded that internal relocation would be 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.
15. 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 in the Board’s Decision. I find the Board was entitled to reach the conclusion that there was no risk of harm. The written grounds the applicant advanced only relate to the matters that happened to her after the repatriation. At the hearing, the applicant did not provide any grounds in support of her intended challenge. In the circumstances, 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 realistic prospects of success such that would enable this court to grant leave[4].
Whether to grant extension of time
16. Apart from the lack of merits, the applicant also faces an additional hurdle for more than three years’ delay for the filing of the Leave Application.
17. Whilst the court is prepared to accept that her repatriation on 9 November 2018 has likely brought about the delay, I am unable to find any reasonable explanation for the delay after she came back to Hong Kong for the second time on 5 March 2021. She only filed the Leave Application after her subsequent claim was dismissed by the Director. Having considered all the relevant factors, I am disinclined to grant an extension of time to the applicant to file the Leave Application out of time.
Withdrawal application
18. In light of the applicant’s confirmed application to withdraw the Leave Application, 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
19. The Form 86 be amended on the court’s own motion.
20. There shall be no extension of time to the applicant to file the application for leave to apply for judicial review.
21. The application for leave to apply for judicial review be dismissed.
Dated the 20th day of August 2025
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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 20/8/2025
Hoang Thi Huong
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 20/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9894/18/1/167/V1933
Director of Immigration
Putative Interested Party’s ref. no.: L/M (24207) in ImmD RA 7/37/C (formerly RBCZ/14164/15), QA T/C 3192/17 (formerly RBCZ/14164/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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