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

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;

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 21 November 2023, 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 14 September 2017 (“Director’s Decision”) refusing the applicant’s request for making a subsequent claim for non-refoulement under s 37ZO of the Immigration Ordinance. In an earlier decision of the Director dated 12 May 2017 (“Director’s Earlier Decision”), the Director considered the applicant’s 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]

Background

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

3.  The applicant was a national of Vietnam. She left Vietnam for China on 10 May 2016 and sneaked into Hong Kong from Shenzhen by boat 2 days later. The applicant raised her non-refoulement claim on 25 May 2016. The claim was based on a fear that if refouled, she would be harmed or killed by her four creditors for unpaid loans

4.  The applicant came to Hong Kong twice in order to escape from the creditors for the 4 loans she took out in 1984. The first time was in 1988 when the applicant escaped to Hong Kong with her husband and 2 children. In 1991, she returned to Vietnam with the children. In 1997, her husband was deported back to Vietnam. The creditors continued to threaten and assault the applicant for the unpaid debts. In March 2015, the applicant was hit at the head and bled. The applicant therefore decided to flee to Hong Kong again. In the Director’s Earlier Decision, the Director decided against the applicant’s claim on all applicable grounds. The applicant’s appeal to the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) was dismissed on 14 September 2017 upon the applicant’s withdrawal of the appeal (“Board’s Decision”).

5.  On 22 August 2023, the applicant made a request for making a subsequent claim and was refused by the Director’s Decision.

Legal principles applicable to judicial review

6.  As the Courts have repeatedly stated, determination of the merits of a non‑refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

7.  In her Form 86 and the supporting affirmation, the applicant did not provide any grounds.

8.  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 in the Director’s Earlier Decision, it was determined that state protection and internal relocation were reasonably available, and that the applicant’s claimed threats from the new creditor were not corroborated by any evidence, the Director therefore refused the applicant’s 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.

9.  It is plain that the applicant did not provide any grounds in support of the Leave Application in showing that on what basis the Director was said to have acted unlawfully or procedurally unfairly in reaching the Director’s Decision, or how such decision could be said to be Wednesbury unreasonable.

10.  After having rigorously examined the Director’s Decision and the Director’s Earlier Decision with anxious scrutiny, this court is satisfied that the Director correctly applied the law, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Director’s Decision.

11.  19. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Withdrawal Application

12.  On 13 August 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 the Leave Application. Enclosed with the said letter was the applicant’s signed letter in both Vietnamese language and Chinese dated 2 April 2025. In the letter, the applicant stated that she would like to withdraw all her applications in Hong Kong including the Leave Application as her problem, was resolved and she wanted to go home as soon as possible.

13.  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

14.  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