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HCAL 945/2021 and HCAL 145/2026
(heard together)
[2026] HKCFI 1523
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NOS. 945 of 2021 AND 145 of 2026
(Heard together)
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BETWEEN
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Vu Xuan Mat |
Applicant |
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Director of Immigration |
Putative |
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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. The Court of Appeal had allowed the applicant’s appeal and referred this case to this Court for re-hearing because this Court had mistakenly assessed the Board’s Decision in his previous claim HCAL 945 of 2021 (“the previous claim”) whereas he lodged a subsequent claim with the Director, who refused his application, and he applied for leave for judicial review of the Director’s decision.
2. This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 28 June 2021 (“the Director’s Decision”) refusing his subsequent claim on the applicable risks[1], which had been determined in the previous claim.
3. The applicant appeared before the Court on 25 February 2026 and admitted that he had lodged for non-refoulement protection in the previous claim and this is the second application on the same facts and grounds.
The procedural history
4. The applicant, aged, is a national of Vietnam. He is an illegal immigration and had lodged a non-refoulement claim with the Director for the reason that, if refouled, he will be harmed or killed by his creditor because he was unable to repay his loan.
5. The Director dismissed his claim for the reason that it was not substantiated. He appealed to Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board found that his claim was unfounded and dismissed his appeal.
6. He was repatriated to Vietnam on 21 June 2019.
7. On 11 April 2021, he was arrested by police and referred to the Immigration Department. He raised a subsequent claim on 4 May 2021.
8. By the Director’s Decision, the Director refused his application.
The subsequent claim application
9. Under section 37ZO of the Ordinance, he 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.
10. Upon the immigration officer’s advice, he had submitted additional materials in support of his application. The additional materials revealed that upon his return to Vietnam in June 2019, the creditor in the previous claim and his subordinates went to his premises where they demanded repayment; and upon his response that he was unable to repay, attacked him, causing injuries to him. He reported the matter to police, who refused to accept his complaint. He therefore came to Hong Kong again.
11. The immigration officer considered his evidence and found that the applicant relied on the similar reasons in his previous claim, which had been considered by the Board and the Board found that state protection was available to him and internal relocation was viable. The Board therefore dismissed his appeal in the previous claim.
12. For those reasons, the immigration officer did not accept that the applicant’s subsequent claim application satisfied the conditions under section 37ZO of the Ordinance and he refused his application.
Application for leave to apply for judicial review of the Director’s Decision
13. The applicant filed Form 86 on 13 January 2026 for judicial review of the Director’s Decision.
14. The applicant has raised the grounds below in support of his application.
(1) He considered that the Director was wrong and Wednesbury unreasonable as he had not considered BOR 2 risk in his application.
(2) The Director had not considered state acquiescence in this case.
(3) The Director had place too much reliance on the country of origin information (“COI”) without taking into account his personal background and experience. The COI also had information that police would not protect his interest, but the Director did not give weight to it.
(4) The Director was unfair as he demanded him to answer questions that he was not in a position to offer any response.
(5) The Director did not take into consideration that corruption in the administration in his country is still a very serious problem.
Discussion
15. 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).
16. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted he relied on the same reasons of his previous claim for his subsequent claim.
17. The reasons in paragraph 14 are general assertions without any evidence in support or simply non-existent. The Director did not have an interview with him.
18. There is no valid reason to challenge the Director’s Decision.
19. The applicant fails to show that he has any realistic chance of success in his intended judicial review of the Director’s Decision.
20. I dismiss his application for leave to apply for judicial review of the Director’s Decision.
DISPOSITION
21. The applicant’s application is dismissed.
Dated the 1st day of April 2026
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(Allen LEE)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 1/4/2026
Vu Xuan Mat
Applicant’s ref. no:
Nil. |
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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 1/4/2026
Director of Immigration
Putative Interested Party’s ref. no.: L/M (23802) in ImmD RA 7/37/C
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The applicable risks are:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. 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
d. 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”).
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