VU NGOC SON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 232/2024

[2026] HKCFI 1580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 232 of 2024

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 29 January 2024, the applicant applied for leave to apply for judicial review (“Subsequent Leave Application”). The intended judicial review was against the decision of the Director of Immigration (“Director”) dated 10 January 2024 refusing the applicant’s request (“Request”) for making a subsequent claim for non-refoulement under s.37ZO of the Immigration Ordinance (“Director’s Subsequent Decision”).

Background

2.  The background as taken from the Director’s Subsequent Decision can be briefly stated as follows.

3.  The applicant is a national of Vietnam. The claim was based on a fear that, if refouled, he would be harmed or killed by his creditor for his unpaid loan.

4.  Out of fear of harm inflicted by the creditor, the applicant left for Hong Kong on 29 September 2015. By the decision dated 20 July 2017 (“Director’s Earlier Decision”), the Director rejected the applicant's non-refoulement claim on all applicable grounds[1]. The applicant withdrew his appeal to the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office. On 1 June 2018 the applicant was repatriated to Vietnam.

5.  On 29 September 2023, the applicant was intercepted in Hong Kong for illegal entry. On 3 October 2023, the applicant made the Request by letter. The applicant submitted 8 items of documents in support of the Request. The Request was based on the applicant’s claim that, if refouled, he would be harmed or killed by the former creditor as well as the new creditor for a new unpaid loan after the applicant was repatriated to Vietnam.

6.  The applicant has requested for an oral hearing. On 29 October 2024, the applicant filed an affirmation as well as a letter for the withdrawal of the Subsequent Leave Application. In the affirmation, the applicant confirmed that it was safe for him to go home, that he made the application to withdraw out of his free will and that he understood the consequences of the withdrawal. In the circumstances, this court will dispose of the Leave Application on paper.

The statutory provisions on subsequent claims

7.  Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

37ZO.  “Limitation on subsequent claim

(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.”

Discussion

8.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Director’s Decision and the applicant’s materials adduced.

9.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In his Form 86, the applicant averred that the Director reached the decision wrongly, that he had failed to appreciate or give proper weight to the state acquiescence, that he acted unreasonably. The supporting affirmation provided no grounds at all.

10.  In the Director’s Subsequent Decision, after the Director had taken into account the facts and findings he made in the Director’s Earlier Decision, as well as the new evidence the applicant submitted in support of the Request, the Director found that the new loan disputes between him and the new creditors were private disputes without involvement of the state. The Director found that his fear of the old creditor had been rejected by the Director in the Director’s Earlier Decision and the new creditor did not really intend to seriously harm the applicant. The Director found that the applicant’s claim of the change of circumstances was not substantiated. The Director found that the Request had no realistic prospect of success and refused it. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant’s written grounds in the Form 86 were vague and did not condescend to particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to the Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

The removal of the applicant

12.  The court was recently notified by the Director by a fax dated 12 May 2025 that the applicant had been removed from Hong Kong on 21 March 2025.

Order

13.  The applicant’s application for leave to apply for judicial review be dismissed.

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