VU THI THANH HUYEN v. DIRECTOR OF IMMIGRATION

CACV 535/2025, [2025] HKCA 1034

On Appeal From [2025] HKCFI 2818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 535 OF 2025

(ON APPEAL FROM HCAL NO 1830 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 17 July 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Director of Immigration (“Director”)  dated 20 July 2020 refusing to allow the applicant to make a subsequent non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1972.  She first entered Hong Kong illegally on 26 August 2015 and was arrested by the police on 27 September 2015.  She lodged a non-refoulement claim.  The applicant’s claim was made on the basis that if she returned to Vietnam, her creditor (Minh)  would harm or kill her due to her inability to repay a loan.  The factual background of the applicant’s claim was set out at [6.1] to [6.17] of the Director’s decision dated 19 July 2017.

3.  By notice of decision dated 19 July 2017, the Director determined the applicant’s claim in relation to all applicable risks against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]  The applicant did not lodge any appeal against this decision.  She was later repatriated to Vietnam on 31 July 2018.

4.  The applicant subsequently entered Hong Kong illegally again on 25 May 2020 and was arrested by the police.  By letter dated 10 June 2020, the applicant requested to make a subsequent claim for non-refoulement protection under the unified screening mechanism.  On 30 June 2020, the applicant was interviewed with the assistance of a Vietnamese interpreter for the purpose of assessing her request and she was requested to provide any further information and evidence in support of her request for making a subsequent claim in writing within 14 days.  However, she did not provide any further written information and evidence to the Immigration Department.

5.  By notice of decision dated 20 July 2020, the Director refused to permit the applicant to make a subsequent claim.  In assessment of the applicant’s case, the Director considered that the further information provided by the applicant at the interview on 30 June 2020 had already been submitted and duly considered in her previous claim.  The Director found that the further information related to the loan dispute between her creditor and the applicant, that the claimed threat had remained unchanged, and that there was no new evidence or documents to consider otherwise.  Therefore, the Director did not accept that there had been any significant change of circumstances since her previous claim was determined, and concluded that there was nothing to constitute any change of circumstances warranting the making of a subsequent claim.

The Judge’s decision in the court below

6.  On 14 September 2020, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Director’s decision dated 20 July 2020.  She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 17 July 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [7], [11] and [12] of the Form CALL-1 as follows:

“ 7. There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

‘ (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.

(4)  If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5)  If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.’

…

11. Given the fact that the Applicant had been given an interview by an immigration officer for her request during which she was fully advised of what she needed to do to support her request to make a subsequent claim but she still failed to do so at all, and as it had already been established by the Director that the risk of harm in her previous claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, of which she never brought any appeal to the Board, and given that the basis of her intended subsequent claim is essentially the same or similar as before, I am unable to see any justification at all in her request to make her subsequent claim.

   12.  In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.”

Appeal to this Court

8.  On 23 July 2025, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that she would be beaten or even killed by her creditors and gangsters if she returned, that the Director failed to appreciate or properly assess the viability of the applicant’s internal relocation, and that the Director failed to consider her human rights.  In her accompanying affirmation, she stated that there was a good ground of appeal that was not necessarily considered in the application for judicial review and that the Director and the Board “did not see the grounds to reserve their decisions”. 

9.  However, on 22 August 2025, the applicant filed a Request for Dismissal of Appeal requesting for her appeal to be dismissed.

Discussion

10.  Although the applicant has made a written request for the dismissal of her appeal, we shall nevertheless briefly discuss the merits of her appeal.

11.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

12.  Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which was quoted by the Judge in his reasons set out above.

13.  In the present case, the Director decided that the matters relied upon by the applicant for making another claim did not constitute any significant change of circumstances since the determination of her previous claim.  As such, the Director refused to permit the applicant to make a subsequent claim for non-refoulement protection on the ground that that there had not been a significant change of circumstances and gave reasons for coming to that conclusion.  Such a decision is within the province of the Director, and the court will not interfere unless it is vitiated on public law grounds.  No such grounds have been raised by the applicant.

14.  The applicant has failed to show any reasonably arguable public law error in relation to the Director’s decision dated 20 July 2020. Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.  Pursuant to the applicant’s request, and for these reasons, the appeal is dismissed.