DANG THI HOA v. DIRECTOR OF IMMIGRATION

HCAL 952/2025

[2025] HKCFI 3414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 952 OF 2025

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 9 April 2025 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.  The Applicant is a 62-year-old national of Vietnam who entered Hong Kong illegally on 3 June 2020, and was arrested by police on 8 November 2021 for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her unpaid debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 14 June 2022 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

4.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 98 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 16 December 2023 after hearing her in evidence and submissions and upon finding no merits in her claim or appeal, and that it also confirmed the Director’s decision.

6.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 17 June 2025 upon finding none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 6/2023 [2025] HKCFI 2546).

Request To Make Subsequent Claim

7.  However, even before her leave application had been dealt with by the Court, the Applicant on 22 April 2025 in writing to the Immigration Department requested to make a subsequent claim on the same basis as her previous claim that she fears of being harmed or killed if refouled to Vietnam as her creditor from her previous claim is still looking for her everywhere over her unpaid debts as before.

8.  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.”

9.  Accordingly, the Director by a letter dated 17 October 2024 required the Applicant to provide further information and evidence in writing in support of her request within 14 days, but which she subsequently never did, nor did she ever reply to the Director’s request.

10.  By a Notice of Decision dated 9 April 2025 Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was the same as that of her previous claim, and that she failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been any significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success.

11.  On 22 April 2025 the Applicant again filed a Form 86 for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for her intended challenge which are essentially the same as for her previous claim:

(1)  That the Director reached the decision wrongly in assessing her non-refoulement claim in that the decision as not reasonable or fair as required by the Wednesbury test in failing to recognizing that her right to life must be protected by criminal law from the killings that she may face if deported back to her home country;

(2)  That the Director failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claim;

(3)  That the Director acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the personal background and experience of the Applicant into account in assessing her claim;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in her home country would not be able to protect but failed to consider or give weight to such evidence and instead ruled otherwise against the Applicant’s claim;

(5)  That the Director was procedurally unfair or improper when assessing whether or not to accept explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer her response;

(6)  That the Director had clearly shown unfair attitude against the Applicant which in itself is enough to render her decision void;

(7)  That the Director failed to attain high standards of fairness in failing to recognize the Applicant’s assertions that corruption and incompetency of the administration in her home country is still a very serious problem as various human rights organizations have compiled reports that stated testament to such assertion that the Director’s decision should be considered unreasonable in the scope of public law;

(8)  That the Director’s decision to refuse the Applicant’s claim was wrong and irrational that leave should be granted for it to be judicially reviewed.

12.  These are as before all just vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to her case, or in what way did the Director or the immigration officer err in the decision or that it was unfair or unreasonable or that the Director was procedurally unfair, or how did the Director fail to assess the COI properly or at all, or what relevancy was state acquiescence to her claim when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement at all, nor was she able to do so at the hearing of her application. As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.  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.

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