|
HCAL 1375/2021
[2026] HKCFI 1356
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1375 of 2021
|
BETWEEN
|
| |
Le Thi Hai |
Applicant |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
THE APPLICATION
1. By Form 86 filed on 30 September 2021, the applicant applied for leave to apply for judicial review of the decision of the Director of Immigration dated 23 June 2021 (the “Director’s Decision”) refusing her subsequent claim under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).
2. She did not ask for a hearing.
The procedural history
3. The applicant is a national of Vietnam. She was an illegal immigrant and was arrested in April 2016. She voluntarily returned to Vietnam on 9 May 2016.
4. She was arrested again by police on 13 October 2016 for illegally entered Hong Kong. She lodged a non-refoulement claim with the Director on the applicable risk[1] for the reason that she was unable to pay her debt in Vietnam. By Notice of Decision dated 27 December 2017, the Director refused her claim. She appealed to the Board. However, she voluntarily returned to Vietnam on 9 November 2018 and her appeal was dismissed.
5. On 15 September 2020, she was arrested again by police for working in Hong Kong without permission. On 17 September 2020, she was sentenced to 15 months imprisonment. She was then repatriated.
6. By letter dated 8 April 2021, the applicant applied for subsequent claim under section 37ZO of the Ordinance.
7. By the Director’s Decision, the Director refused her application.
The subsequent claim application
8. Under section 37ZO of the Ordinance, she has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.
9. The applicant has submitted additional information to the immigration officer to support her application. The additional materials state that she still owed her creditor debt, which she was unable to settle. For this reason, her husband did not allow her to stay with him.
10. Having considered the additional materials, the immigration officer came to the conclusion that there was no significant change of circumstances referred to under section 37ZO.
11. The immigration officer therefore found that the applicant failed to satisfy those conditions under section 37ZO of the Ordinance and dismissed her application for subsequent claim.
The application for leave to apply for judicial review application
12. The applicant filed Form 86 on 30 September 2021 for leave to apply for judicial review of the Director’s Decision.
13. In her affidavit in support of her application, the applicant did not raise any specific ground to challenge the Director’s Decision.
Discussion
14. The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact-finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
15. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
16. The applicant has not raised any valid ground to challenge the Director’s Decision.
17. I find that there is no realistic prospect of success in the applicant’s subsequent claim. I dismiss her application for leave to apply for judicial review of the Director’s Decision.
DISPOSITION
18. The applicant’s application is dismissed.
Dated the 17th day of March 2026
| |
(Klein Tse)
for Registrar, High Court
|
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 17/3/2026
Le Thi Hai
Applicant’s ref. no:
Nil. |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17/3/2026
Director of Immigration
Putative Respondent’s ref. no.:
L/M (23554) in ImmD RA 7/37/C (formerly RBCZ/10736/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The applicable risks are:
(1) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(2) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
(3) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
(4) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
|