TRAN THI THANH PHUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1610/2021

[2025] HKCFI 3973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1610 of 2021

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 oral submissions by the Applicant in open court;

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

2.  The applicant’s application for leave to apply for judicial review 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 24 November 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against a Chinese decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 20 August 2021 (“Board’s Decision”) dismissing the applicant’s appeal against a Chinese decision of the Director of Immigration (“Director”) dated 26 February 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/2021/HCAL001610_2021_files/the_Board's_Decision.pdf

2.  In her Form 86, the applicant named the Board and the Director as the proposed respondents and herself as the interested the interested party. As the Board should have been the proper respondents and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that she would be harmed or killed by her creditor and the triad-related latter’s people. 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.  The applicant has requested for an oral hearing. On 22 July 2025, the applicant filed an affirmation to apply for the withdrawal of the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.

5.  Notwithstanding the fact that both the Director’s Decision and the Board’s Decision were written in the Chinese language, this court believes that it is appropriate to render the decision in Form Call-1 in English as both the Form 86 and her supporting affirmation as well as the recent affirmation for withdrawal were all in English.

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. The applicant’s Form 86 and the supporting affirmation did not provide any such particulars.  

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.[3] In the present case, whilst the Board accepted the applicant’s evidence of assaults for an unpaid outstanding loan, it however found that the creditor and her henchmen had no intention to harm the applicant. The Board found that the past ill-treatment failed to reach the requisite minimum level of ill-treatment. It therefore concluded that there was not any risk of harm. The Board further 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 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 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].

Withdrawal application

10.  In the affirmation applying for the withdrawal of the Leave Application, the applicant also filed a letter at the same time. Both the contents of the affirmation and the letter are substantially similar, in which the applicant stated that it was safe for her to return home, and that she made the application out of her free will, and further that she understood the consequences of the withdrawal.

11.  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

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

13.  The applicant’s application for leave to apply for judicial review 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