TRUONG THI THANH v. DIRECTOR OF IMMIGRATION

HCAL 1419/2025

[2025] HKCFI 3636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1419 of 2025

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

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 20 June 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 June 2025 (the “Notice”), refusing her request (the “Request”) to make a subsequent claim.

2.  The Applicant did not request an oral hearing. Nevertheless, an oral hearing on 30 July 2025 was scheduled for her. The notice of hearing was successfully served on her. Prior to the hearing, a court staff contacted her by telephone to remind her of the hearing. However, she said she would not attend as she intended to withdraw her leave application. Since no such application has been received by the Court and as the notice of hearing contains a warning that if she does not appear she will be deemed to have waived her right to make oral submissions at the hearing and the Court will deal with her application according to the paper already placed before the Court. Having considered the nature of the application and issues raised, the Director’s decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper in her absence and made this determination.

3.  The Applicant is a Vietnamese national. She entered Hong Kong illegally from Mainland China on 22 March 2016 and lodged a non-refoulement claim by way of a written signification on 4 April 2016 (the “previous claim”). In gist, she claimed that if returned to Vietnam, she would be harmed or killed by her creditor for being unable to repay her debt owed to him. Her previous claim was rejected by the Director. Her appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) on 27 November 2019. The Board found her incredible and did not accept her evidence. Nevertheless, it also assessed her claim on the basis of the case as she asserted. It found the risk of harm which the Applicant would likely face on her return to Vietnam is low and that she can mitigate or avoid the risk by seeking state protection or internal relocation. Applying the law applicable to non-refoulement protection to the facts of her case as she alleged, the Board found she is not entitled to non-refoulement protection under any of the applicable grounds under the Unified Screening Mechanism.

4.  The Applicant did not leave Hong Kong. By a letter dated 31 March 2025, she made the Request to file a subsequent claim. The immigration officer found her Request was just a reiteration or continuation of her previous claim and did not amount to evidence of a significant change of circumstance of her case warranting the making of a subsequent claim. He regarded her supporting evidence as generic evidence which is not sufficient to support a claim. Hence, the immigration officer issued the Notice to reject her Request to make a subsequent claim. She now applies for leave to apply for judicial review of that Notice.

Grounds for judicial review

5.  The Applicant annexed a statement of grounds of application to her Form 86 advancing seven grounds of application. These are as follows:

(1)  that she should be given another chance to make a Subsequent Claim;

(2)  that the Director’s Decision is wrong, unreasonable and unfair;

(3)  that he Director failed to give proper weightage to the presence of state acquiescence;

(4)  the Director acted unreasonably and was procedurally unfair by placing too much reliance on the country of origin information (“COI”) and failed to take the Applicant’s personal circumstances into account and the fact that police protection is not available;

(5)  the Director acted improperly and unfairly when assessing his explanations and unreasonably required him to respond to questions that he was not in a position to respond;

(6)  the Director was unfair in that he failed to take such argument into account; and

(7)  the Director failed to attain the high standard of fairness required by the Wednesbury test.

6.  The grounds are worded in general terms and are lacking in particulars. The Applicant did not attend the hearing deliberately. She forwent the opportunity to perfect her leave application by supplementing it with particulars. The issues raised by these grounds are seemingly directed at the Board’s Decisions or the Director’s decision relating to the previous claim which have no bearing to a review of the Director’s decision refusing her Request to make a subsequent claim. Apart from lack of particulars, these grounds are irrelevant and inapplicable to the immigration officer’s decision refusing her Request. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision, which the Court will turn to in the next section.

Overall scrutiny

7.  Having considered the Request, the Board’s Decision in the previous claim and having rigorously examined the Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO; correctly identified the issues; and properly analysed the evidence. The immigration officer observed a very high standard of fairness. He advised the Applicant on the law and procedure in prosecuting her Request and the availability of the Duty Lawyer Service.

8.  In essence, the basis of the Applicant’s Request are that her creditor is still pursuing her for the debt, that she could not seek help from the Vietnamese government; and that she could not relocate to other areas in Vietnam. She submitted 12 links under a title “Some reference links about the current situation of creditors killing debtors in Vietnam” and five news articles about debtors being killed by creditors as supporting evidence. The immigration officer found her Request was just a reiteration or continuation of her previous claim. Those issues had been determined by the Board in the previous claim. They could not amount to evidence of a significant change of circumstance of her case warranting the making of a subsequent claim. The immigration officer also regarded her supporting evidence as generic evidence which is not sufficient to support a claim. Hence, he rejected her Request.

9.  On any objective view, the immigration officer’s reasons for refusing the Request are un-reproachable. The Applicant offered no new evidence or information which suggests that there has been a significant change in circumstance since her previous claim was finally determined and that the change, if any, when taken together with the material previously submitted in support of her previous claim, would give the subsequent claim a realistic prospect of success. These are finding of facts which are exclusively within the province of the Director to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. This Court could detect no error of law in the Notice or procedural unfairness in the making of the decision in the Notice. The Notice does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospect of success.

Conclusion

10.  For the above reasons, the leave application is refused.

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