NGUYEN THI PHUONG DUNG v. DIRECTOR OF IMMIGRATION

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

 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 30 June 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 17 June 2022 (the “2022 Notice”) refusing her application to make a subsequent claim.

2.  The Applicant had requested an oral hearing.  A hearing on 4 March 2026 was scheduled and notice of hearing were sent to her by post on 12 February 2026 to her address as updated by her on 11 October 2022 since filing of her Form 86 and to her latest address as discovered from the Immigration Department on 5 February 2026.  Neither of the notices has been returned in the course of mail.  The Applicant had never informed the court of any change of address since filing her Form 86.  There is nothing to suggest that she had not received the notice of hearing.  An attempt was made on the afternoon of 3 March 2026 to contact her by telephone to remind her of the hearing, but the call was not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to her notice.  She did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Vietnamese national, aged 37.  She had previously sneaked into Hong Kong from Mainland China in February 2014 and lodged a non-refoulement claim with the Director.  Her claim was rejected by the Director’s decision in his Notice of Decision dated 30 June 2017 (the “2017 Notice”).  She appealed to the Torture Claims Appeal Board / Non-refoulement Petitions Office against the Director’s decision in the 2017 Notice on 12 July 2017, but withdrew her appeal on 9 May 2019.  She was repatriated to Vietnam on 27 June 2019.

4.  On 2 March 2022, the Applicant was arrested by the police again. She claimed to have sneaked into Hong Kong again on 20 December 2021.  On 29 March 2022, she made a request by letter for making a subsequent claim (the “Request”).  The Request was refused by the Director’s 2022 Notice.  The Applicant now seeks leave to apply for judicial review of that notice.

The law

5.  Under the Unified Screening Mechanism, 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

6.  In her previous claim, the Applicant claimed, if returned to Vietnam, she will be harmed or even killed by her ex-husband for refusing to return to him.  The immigration officer who assessed her previous claim (the “previous case officer”) found her ex-husband had no intention to harm or kill the Applicant and that his conduct and threat were intended to coerce her to return to him.  The previous case officer found the Applicant staying with her ex-sister-in-law and helping her in her business inconsistent with her alleged fear of serious harm from her ex-husband.  He also found there was no evidence that her ex-husband had the resource and means to locate the Applicant anywhere in Vietnam and that she could mitigate or avoid the risk of harm from her ex-husband by seeking police protection and through internal relocation.

The intended subsequent claim

7.  In the Request, the Applicant explained that she withdrew her appeal in the previous claim because she had been informed by her ex-mother-in-law that her ex-husband had been imprisoned for a criminal offence for seven years.  Hence, it was safe for her to return to Vietnam in 2019. 

8.  She advanced a new risk of harm from a moneylender and renewed the risk of harm from her ex-husband.  She claimed to have borrowed 1,400 million Vietnamese Dong (“VND”) from a moneylender with triad background to invest in virtual currency with a friend in mid-2021.  She had to pay monthly interest of VND 90 million.  She handed over the money borrowed to her friend for her to trade in virtual currency.  At first, they made some profits and shared the profits equally.  After four months, they lost all their investment and her friend disappeared.  She could only pay the moneylender interest for four months.  Since the end of 2021, the moneylender and three to four of his subordinates visited the Applicant many times to demand repayment of the principal and outstanding interest.  They threatened something dreadful would happen to her if she did not pay.  A month later, the moneylender and his men came.  They damaged the Applicant’s furniture and home appliances and assaulted her with fists and kicks.  The moneylender threatened to kill her if she could not pay in a month.  The Applicant submitted a medical certificate and nine pages of photographs as evidence of the injuries she suffered from the moneylender.

9.  In addition, the Applicant claimed that in December 2021, her ex-husband was released from prison early.  He telephoned her and demanded her to return to him.  He telephoned her everyday and asked for her whereabouts.  The Applicant lived alternatively in her home and her parents’ home to avoid her ex-husband.  Her husband last threatened to look for her in her parents’ home and threatened that if he should find her he “would not be polite”. 

10.  The Applicant did not consider the police would protect her.  She believed her ex-husband and the moneylender would be able to find her out anywhere in Vietnam through their network.  Out of fear of harm from the moneylender and her ex-husband, the Applicant fled Vietnam on 13 December 2021 and sneaked into Hong Kong via Mainland China.

The immigration officer’s decision on the subsequent claim

11.  The immigration officer considered the renewed risk from the ex-husband had been fully determined in the previous claim.  She found there was no evidence to suggest that the ill-treatment by her ex-husband was connected with the Vietnamese government nor was the Vietnamese government involved in threatening the Applicant.  She therefore considered the renewed risk of harm from the ex-husband did not amount to any significant change in circumstance.

12.  The immigration officer accepted that the alleged risk of harm from the moneylender was different from the ex-husband. However, the injuries and ill-treatment inflicted were not serious.  As the moneylender had repeatedly given the Applicant extension of time to pay, the immigration officer considered the moneylender’s purpose in ill-treating the Applicant was to coerce her to repay the loan but had no intention to serious harm or kill her.  The immigration officer also found that the Applicant’s dispute with the moneylender was a private monetary dispute and the purpose of the threat was to coerce the Applicant to repay the loan,  which had nothing to do with the Vietnamese government. 

13.  The immigration officer also dismissed the Applicant’s belief that the moneylender could locate her anywhere in Vietnam as her own speculation.  She found state protection and internal relocation feasible to mitigate or avoid the risk of harm.  Even assuming the medical certificate and photographs were referable to the injuries suffered by the Applicant at the hands of the moneylender, the immigration officer did not consider they are sufficient to entitle the Applicant to protection, particularly in view of the availability of state protection and internal relocation. 

14.  For all these reasons, the immigration officer did not consider there were significant changes in circumstance since the Applicant’s claim was last determined and that those changes, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  Hence, she refused the Applicant’s Request.

The legal principles applicable to judicial review

15.  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 Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [1].

Grounds for judicial review

16.  The Applicant did not advance any grounds of application in her Form 86 or supporting affirmation.  She did not attend the hearing and forwent her last opportunity of advancing her grounds of application.  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 sought to be reviewed. 

Overall scrutiny

17.  Having considered the Request, the Director’s 2017 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 analyzed the evidence.  The Court could not detect any error of law in the 2022 Notice.

18.  The immigration officer observed a very high standard of fairness.  She advised the Applicant on the law and procedure in prosecuting her Request and advised her of her right to legal representation and the availability of publicly funded legal assistance.  She was legally represented by the Duty Lawyer Service which made submissions on her behalf.  The immigration officer acted fairly.  She accepted for the purpose of considering her subsequent claim the Applicant’s factual case as she asserted.  The Applicant could have no valid complaint about the immigration officer’s approach and acceptance of her factual case.

19.  The immigration officer assessed the Applicant’s Request on the basis of the factual case as she asserted.  It took into consideration the finding of the previous case officer, in particular availability of state protection and internal relocation, which she was required to under section 37ZO of the Immigration Ordinance.  On the basis of these evidence, she found there was no significant change in circumstances 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.  On any objective view of the evidence and information provided by the Applicant, it was open to the immigration officer to reach that conclusion.  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 2025 Notice.  The 2025 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

20.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2022 Notice 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