NGUYEN THI HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 493/2022

[2026] HKCFI 330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 493 of 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 16 June 2022, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Director (“Director”) dated 7 June 2022 (“Director’s Decision”) refusing the applicant’s request (“Request”) for making a subsequent claim for non-refoulement under s 37ZO of the Immigration Ordinance.  In an earlier decision of the Director dated 9 March 2017 (“Director’s Earlier Decision”), the Director rejected the non‑refoulement claim under all applicable grounds i.e. risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM[5]  made by the applicant and her son, a minor born in Hong Kong on 4 June 2016.

2.  Notwithstanding that the Director’s Decision and the Director’s Earlier Decision are both in the Chinese language, I believe that it is more convenient to render my decision in English as the applicant’s Form 86 and the supporting affirmation were both prepared in English.

Background

3.  The background as taken from the Director’s Earlier Decision and the Director’s Decision can be briefly stated as follows.

4.  The applicant was a national of Vietnam.  The applicant together with her ex‑husband left Vietnam for China around mid-December 2015 and sneaked into Hong Kong from Shenzhen by boat on 12 January 2016.  The applicant and her son raised the non-refoulement claim respectively on 20 June and 24 November 2016.  The claim was based on a fear that, if refouled to Vietnam, they would be harmed or killed by the creditor and his henchmen for two unpaid loans the applicant and her ex-husband had borrowed.

5.  In around 2015, the applicant and her ex-husband took out two loans from a person named “Sang” in order to expand their cocoa plantation.  Due to the poor harvest, they were unable to repay the interest to Sang.  Sang therefore started threatening the applicant and her ex-husband for repayment on 3 occasions.  The last occasion when Sang and 6 to 7 of his men came to their home, the applicant was already 3 weeks’ pregnant.  The applicant was injured while she was trying to stop the men from hitting her ex-husband.  The applicant was hospitalized for 2 to 3 days.

6.  After the applicant’s discharge from the hospital, Sang and his men came to their home and threatened them for the repayment of the loans.  The applicant’s ex-husband was even hit by Sang and his men once on the street with wooden poles and iron pipes.  About 7 days later, Sang and his men came to vandalize their home and the face of her ex-husband was injured.  Despite having subsequently left home to live with the applicant’s mother, Sang and his men came to her mother’s home and vandalized it.

7.  The applicant and her ex-husband decided to leave again for another province.  They however kept receiving threatening phone calls from Sang and his men, threatening them if the loans were not paid, they would be killed. About 2 to 3 months later, the applicant’s ex-husband was assaulted by Sang’s men.  The applicant was pushed to the ground when they kicked and slapped her. The applicant lost consciousness and was sent to the nearby clinic for treatment.  They therefore decided to leave Vietnam.

8.  After having arrived in Hong Kong, the applicant lost contact with her ex‑husband since May 2016.

9.  In the Director’s Earlier Decision, the Director found that the threats made by Sang and his men were mainly directed towards the applicant’s ex-husband.  It was assessed that the risk of harm was low.  The Director further found that the debt dispute was solely a private dispute without the involvement of any government officials or state agents.  The Director found that state protection and internal relocation were both reasonably available to both the applicant and her son.  Thus, the Director rejected their non-refoulement claims.

10.  The applicant and her son did not appeal against the Director’s Earlier Decision, and were repatriated back to Vietnam on 24 July 2018.

Re-entry to Hong Kong

11.  On 25 January 2022, the applicant entered Hong Kong illegally and was arrested by the police.  On 25 February 2022, the applicant made the Request after she was transferred to the Immigration Department.

12.  The applicant has requested for an oral hearing in the Leave Application. On 9 and 10 September 2025, the applicant respectively filed an affirmation and a letter applying for the withdrawal of the Leave Application.  In both the affirmation and the letter, the applicant stated that it was safe for her to return home and that she would like to go back as soon as possible.  She affirmed that she made the application out of her free will and understood the consequences of withdrawal.  In the circumstances, this court will dispose of the Leave Application on paper.

The statutory provisions on subsequent claims

13.  Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

“37ZO. Limitation on subsequent claim

(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that -

(a) There has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) The change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

14.  In the Request, the applicant was represented by the Duty Lawyer Service. The lawyer representing the applicant submitted a letter together with the applicant’s updated information in support of the Request. On 1 June 2022, the applicant attended an interview before an immigration officer.  The Request was based on the applicant’s claim that, if refouled, she would be harmed or killed by the creditor and his henchmen.

Discussion

15.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[6] It is sufficient to state my observations after considering the Director’s Decision and the applicant’s materials adduced.

16.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[7], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  In the Form 86, the applicant averred that it was wrong for the Director to suggest that she could relocate to another location given the social network of the gangsters and her poor health.  In the supporting affirmation, the applicant did not provide any grounds.

17.  In the Director’s Decision, after the Director had taken into account the facts and findings he made in the Director’s Earlier Decision, the Director found that although the applicant was threatened and assaulted by the creditor for the unpaid loans, and that she had been forced to work to repay the loans, there was no evidence that these unlawful activities involved with the government.  The Director found that the applicant’s claim of the change of circumstances was not substantiated.  The Director found that the Request had no realistic prospect of success, after having taken into account the availability of state protection and internal relocation having been determined in the Director’s Earlier Decision.  The Director therefore refused the Request. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

18.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness.  The applicant’s written grounds in the Form 86 did not condescend to particulars.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision.  The applicant’s intended challenge to Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[8].

Withdrawal Application

19.  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.

Order

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