|
HCAL 1543/2021
[2026] HKCFI 1357
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1543 of 2021
|
BETWEEN
|
| |
Nguyen Huy Chung |
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. This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 13 July 2021 (“the Director’s Decision”) refusing his subsequent claim on the applicable risks[1], which had been determined in his previous application (“the previous claim”).
2. The applicant did not ask for a hearing. I shall deal with his application on the papers.
The procedural history
3. The applicant is a national of Vietnam. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“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.
4. 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 by a Decision dated 25 May 2018 (“the Board’s Decision”), dismissed his appeal.
5. He was repatriated to Vietnam on 4 July 2018.
6. By letter dated 6 May 2021, the applicant applied to the Director for making a subsequent claim for non-refoulement protection. By the Director’s Decision, the Director refused his application.
The subsequent claim application
7. 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.
8. Upon the immigration officer’s advice, he had submitted additional materials in support of his application. His additional materials state that he repay his loan to his creditor after he was repatriated to Vietnam on 4 July 2018. However, he borrowed money from the same creditor, but he was unable to repay. The creditor had threatened to kill him.
9. The immigration officer considered his evidence and found that the applicant relied on the similar reasons in his previous claim because the nature of his fear is the same and the creditor is the same creditor. Besides, the immigration officer also found that state protection would be available to him and internal relocation was viable. [6] & [9]
10. 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
11. The applicant filed Form 86 on 8 November 2021 for judicial review of the Director’s Decision.
12. In the affirmation in support of his application, the applicant said that he was not given an opportunity to clarify his case and situation in his country.
Discussion
13. 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).
14. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
15. The reason under paragraph 12 is bare assertion without any evidence in support. He has not been able to say what clarification he intended to make to the Director, who had considered the additional materials submitted by him.
16. There is no valid reason to challenge the Director’s Decision.
17. The applicant fails to show that he has any realistic chance of success in his intended judicial review of the Director’s Decision.
Disposition
18. I dismiss his application for leave to apply for judicial review of the Director’s Decision.
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
Nguyen Huy Chung
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 (23859) in ImmD RA 7/37/C (Formerly RBCZ 11095/16)
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”).
|