LE THI LIEN v. DIRECTOR OF IMMIGRATION

HCAL 656/2022

[2026] HKCFI 2421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 656 of 2022

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 oral submissions by the Applicant 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 25 July 2022 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 28 June 2022 (the “2022 Notice”) refusing her request to make a subsequent claim (the “Request”).   

2.  The Applicant is a Vietnamese, aged 49.  On 5 April 2015, she was arrested for remaining in Hong Kong illegally.  On 14 April 2015, she lodged a claim for non-refoulement protection by written representation (the “previous claim”).  Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s decision in his Notice of Decision dated 1 December 2016 (the “2016 Notice”).  She appealed the 2016 Notice.  However, she was repatriated to Vietnam on 11 October 2017 before her appeal was heard.  Pursuant to section 37ZF of the Immigration Ordinance, her previous claim was treated as withdrawn and her appeal was dismissed by the Board’s decision dated 14 February 2018. Hence, the Director’s finding in the 2016 Notice is now final and binding on the Applicant.  Then, the Applicant sneaked into Hong Kong again on 26 January 2022. On 2 March 2022, she made the Request.  Her Request was rejected by the Director’s 2022 Notice.  She now seeks leave to apply for judicial review of that 2022 Notice.

The law

3.  Under the USM, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance.  The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The previous claim

4.  The Applicant’s previous claim was that she will be harmed or killed by a group of unknown men for failing to pay them extortion money based on their false accusation that she had caused the disappearance of her former primary school mate.  The immigration  officer who assessed her previous claim (the “previous case officer”) found in the 2016 Notice that the Applicant’s dispute with the group of unknown men was purely private and personal in nature in which the Vietnamese government was not involved, that the group of unknown men had no intention to cause the Applicant actual harm, that the level of risk of harm was low and that state protection and internal relocation were available to mitigate or avoid the risk of harm.

The immigration officer’s finding in the intended subsequent claim

5.  In her Request, the Applicant claimed that upon her repatriation to Vietnam in Octboer 2017, her family sold their house and property to pay off her debt.  Then in 2019, she borrowed 800 million Vietnamese Dongs from a notorious gangster to open a restaurant and a beverage shop.  Her business failed in 2020 because of Covid-19.  She was unable to repay the moneylender. She was brutally assaulted and threatened with death by the moneylender in June 2020.  She made a report to the police, but the police did not help her.  In 2020, she went to Mong Cai with the hope of starting a new life.  Her health was not good and she could not find employment.  In December 2021, she was located by the moneylender’s men who cursed her and beat her.  She was saved by some passers-by.  Then, she went to Mainland China.  From there she sneaked into Hong Kong.  She produced a copy of the loan agreement with the moneylender, a medical certificate from the hospital dated 1 July 2020 and a flyer with threatening words relating to her.

6.  Though the Applicant is claiming a new source of harm and for a different cause, the immigration officer found the nature of her new claim is same as that in her previous claim, ie a private monetary dispute with gangsters in which the Vietnamese government was not involved.  He assessed her intended subsequent on the basis of the case as she asserted.  He found no evidence that the moneylender is a government official or acting under the state authority or at the instigation or acquiescence of a public official or any person acting in an official capacity when inflicting the harm and administering the threat on her.   He noted from the medical certificate that the Applicant was conscious upon admission to the hospital and was only treated with anti-biotics.  He found the injuries she suffered was not life threatening, suggesting that the injuries could not have attained the minimum level of severity.  He found on the basis of the Applicant’s evidence that the police was unable to help her due to insufficient evidence rather than their unwillingness or incapability to assist.  On the basis of the Applicant’s evidence, he found that the gangsters felt deterred by the passers-by.  From that, the immigration officer inferred that the moneylender and his gangsters were not as powerful as the Applicant thought. The immigration officer also found internal relocation a feasible alternative to avoid the risk of harm from the moneylender.  He considered the three documents provided by the Applicant could not advance her case further.  He therefore came to the conclusion that the Applicant had failed to prove significant change of circumstance which warrant making a subsequent claim and issued the 2022 Notice on behalf of the Director to refuse her Request.  

The legal principles applicable to judicial review

7.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[1].

Grounds for judicial review

8.  The Applicant advanced three grounds for judicial review in her Form 86.  First, she disagreed with the Director’s suggestion that she could relocate to live in other locations to avoid the gangsters because of her health, personality and the disadvantage she would suffer in the labour market.  This is a direct challenge of the finding of the previous case officer in the previous claim.  The same argument had been advanced before the immigration officer in her intended subsequent claim.  Both the previous case officer and the immigration officer found that being an able-bodied adult with working experience in Vietnam it would not be unduly harsh for the Applicant to relocate to other places such as Ho Chi Minh City to avoid any perceived risk of feared ill-treatment.   When making the above assessment, the immigration officer was aware of the Applicant’s alleged health condition.  This ground is a challenge of the immigration officer’s finding of fact, which is impermissible.

9.  Second, the Applicant claimed that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is possible for the moneylender and gangsters to find her out and harm her.  This ground had been considered by the immigration officer and rejected as the Applicant’s own speculation unsupported by any evidence.  As the immigration officer found, the fact that the gangsters felt deterred by the passers-by and stopped assaulting the Applicant is evidence that the moneylender and his gangsters were not as powerful as the Applicant believed.  This ground is also a challenged of the immigration officer’s finding of fact, which is impermissible.

10.  Third, the Applicant submitted that if returned to Vietnam, she will be beaten and even killed by the gangsters, because the gangsters in Vietnam are cruel and violent.  They disregard the law and are willing to kill to satisfy their anger and ferocity.  This is a repetition of her intended subsequent claim rejected by the immigration officer.  The immigration officer assessed her claim on the basis of the case as she asserted.  Even accepting that she would be beaten, the officer found she could mitigate or avoid the risk of harm by seeking state protection and resorting to internal relocation.  This ground is also a direct challenge of the immigration officer’s finding of fact that she could avoid the risk of harm by seeking state protection and internal relocation.  This is impermissible. 

11.  Furthermore, though not expressly stated by the immigration officer, he said in paragraph 12 of the 2022 Notice that even accepting that the Applicant had been threatened and assaulted, her dispute with the moneylender is a personal monetary dispute which the Vietnamese government is not involved and there was no evidence that the moneylender is a government official or acting under the state authority or at the instigation of or acquiescence of a public official or any person acting in an official capacity when inflicting the ill-treatment on her.  Such ill-treatment which did not attain the minimum level of severity falls outside the proscribed harm protected under the USM.

12.  There is no substance in any of the grounds advanced.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the decision in the 2022 Notice sought to be reviewed.

Overall scrutiny

13.  Having considered the Request, the Director’s 2016 Notice, and having rigorously examined the 2022 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 of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence.

14.  The immigration officer observed a very high standard of fairness.  He properly advised the Applicant of the requirements in making a subsequent claim and the availability of the publicly-funded legal assistance provided by the Duty Lawyer Service.  He reminded the Applicant of the deadline to provide further information, the consequence of her failure to do so and the procedure for applying for extension of time to comply.  The Applicant could have no valid complaint about procedural unfairness in the immigration officer’s processing of her Request.

15.  He assessed the Applicant’s intended subsequent claim on the basis of the case as she asserted.  In essence, he found there was no significant change in circumstances since the previous claim was finally determined which when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  His finding in the 2022 Notice is essentially a mixed finding of fact and of the law.  On the evidence as presented by the Applicant, it was open to the immigration officer to make that finding.  It must then necessarily follow that there was nothing in her Request which would give the intended subsequent claim a realistic prospect of success.  Insofar as this is a finding of law, this Court could detect no error of law in the 2022 Notice.  Insofar as it is a finding of fact, it is solely a matter for the immigration officer which the Court in a judicial review may not interfere, save for errors of law, procedural unfairness and irrationality in the 2022 Notice.  The 2022 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

16.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2025 Notice of Decision 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