DO THU HA 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 22 December 2025 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 16 December 2025 (the “2025 Notice”) refusing her request to make a subsequent claim (the “Request”).   

2.  The Applicant is a Vietnamese, now aged 51.  She entered Hong Kong illegally on 27 March 2017 and filed a non-refoulement claim on 12 April 2017 (the “previous claim”).  In gist, she claimed that if returned to Vietnam, she would be harmed or even killed by the vendor of a property for refusing to cancel a scam land transaction she had entered into with him.  Her personal background, the factual background leading to the present application, the basis of her claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below [1] for reference. 

3.  That previous claim was rejected by the Director’s Notice of Decision dated 3 January 2018 (the “2018 Notice”).  Her appeal against the Director’s decision was rejected by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”).   Her previous claim had run its full course with this Court refusing her application for leave to apply for judicial review on 28 August 2025.  However, the Applicant did not leave Hong Kong.  About one and half months later, she made the Request by letter dated 16 December 2025.  

The law

4.  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of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a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 intended subsequent claim

5.  In response to her Request, an immigration officer advised her by letter dated 15 October 2025 of the requirements for making a subsequent claim and the availability of the publicly-funded legal assistance.  At her request, the officer also referred her case to the Duty Lawyer Service (“DLS”).  However, the DLS declined to provide her with legal representation.  By a letter dated 17 November 2025 in English with Vietnamese translation, the Applicant was informed that she might instruct a private lawyer at her own expenses, if she saw fit to do so.  She was also reminded, in particular, of the need to provide further information relating to her Request on or before 1 December 2025 and was advised of the procedure for applying for extension of time to do so if the evidence/supporting documents were not readily available.  She was also informed that if the immigration officer did not hear from her on or before the deadline, her Request would be assessed based on all the available information. The Applicant did not file any additional information.  The immigration officer proceeded to assess her Request.   

6.  The Applicant’s subsequent claim is in substance a repetition or reiteration of her previous claim.  The only change of circumstances asserted by her is that her persecutors “are still looking for her to threaten her; they seem to have no humanity and disregard the law.”  She repeated the corruption in the government apparatus in Vietnam and that she could not relocate to other cities in Vietnam to avoid her persecutor. She worried she would be found by her persecutors and that her life would be in danger if she returned to Vietnam.

The immigration officer’s decision

7.  The immigration officer took the view that her Request is largely a reiteration or continuation of her previous claim and does not amount to a significant change of circumstances warranting the making of a subsequent claim.  He also found from updated country of origin information (“COI”) that state protection is available to mitigate the risk of harm and internal relocation feasible to avoid the risk of harm.  For all these reasons, the immigration officer was not satisfied that the Applicant met the requirements for making a subsequent claim and issued the 2025 Notice on behalf of the Director refusing her Request.

The legal principles applicable to judicial review

8.  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[2].

Grounds for judicial review

9.  After the above legal principles were explained to the Applicant, she said she had no idea whether there are any errors of law, procedural unfairness or irrationality in the 2025 Decision. She reiterated that her life is still in danger in Vietnam and she could not return to her home country.  In effect, this is a direct challenge of the immigration officer’s finding of fact which is not permissible in an application for judicial review.  In the absence of proper or arguable grounds of application, the court in an application for leave to apply for judicial review could only focus on errors of law or irrationality in the decision.  In her Form 86, the Applicant advanced the following seven grounds for judicial review.

(1)   She should be given another chance to make a subsequent claim

10.  For reasons as explained in paragraph 9, a judicial review is not a retrial.   The court has no power to reconsider a claim afresh.  It could only examine the decision and intervene for errors of law, procedural unfairness or irrationality.  The Court will revisit this issue in its overall scrutiny of the immigration officer’s decision.

(2)   She believes the immigration officer’s decision is wrong, unfair and unreasonable.

11.  As mentioned in paragraph 10, the Applicant said she had no idea whether there are any errors of law, procedural unfairness or irrationality in the decision.  She was unable to provide any particulars of errors of law, unfairness or irrationality in the Decision.  Anyway, this Court will not take her words at face value.  It will revisit these issues in its overall scrutiny of the immigration officer’s decision.

(3)   Failure to consider the presence of state acquiescence in her case

12.  The issues before the immigration were whether there were significant changes in circumstances since the previous claim was finally determined 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.  The Applicant submitted no information on how state acquiescence or changes in state acquiescence since her previous claim was determined would give her subsequent claim a realistic prospect of success.

(4)   The immigration officer acted unreasonably and procedurally unfairly by placing too much reliance on COI but failed to take her personal background into account

13.  COI and its impact on the Applicant’s claim for protection was something which was determined in the previous claim.  That determination is final.  The immigration officer processing her Request had not taken any new COI into consideration other than for the purpose of verifying that there were no changes in COI which would amount to significant changes in circumstances in support of the Applicant’s Request.  As explained in paragraph 12, the material issue is whether there are significant changes in circumstances since the previous claim was finally determined 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.  The Applicant submitted no COI or changes in COI which meet the above criteria for consideration by the immigration officer.  The immigration officer could not be said to have erred in this regard.

(5)   The immigration officer was procedurally improper and/or unfair when assessing whether to accept or not to accept her explanations required her to respond to questions that she was not in a position to offer any response

14.  In processing the Applicant’s Request, the immigration officer only asked her to submit evidence and information in support of her Request.  He never posed any question to her or required an answer from her.  There was also no interview held in the process for such interaction to take place.

(6)   The immigration officer acted unfairly by failing to take such argument into account or failing to give enough weight to such argument before reaching the decision

15.  All her arguments are contained in her Request.  The weight to be attach to her argument is a finding of fact solely for the immigration officer, which this Court in a judicial review may not interfere save for errors of law, procedural unfairness or irrationality in the Decision.  The Court will the examine the immigration officer’s decision in this context in its overall scrutiny of the 2025 Decision.

(7)   The immigration officer was wrong and irrational in refusing her Request

16.  There are no particulars in the Applicant’s grounds of application.  In the absence of particulars, the Court shall consider this ground in its overall scrutiny of the immigration officer’s Decision.

Overall scrutiny

17.  Having considered the Request, the Director’s 2025 Notice, the 2018 Notice and the Board’s Decisions in the previous claim and having rigorously examined the 2025 Notice with anxious scrutiny, the Court is satisfied that the immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting her Request and advised her of the availability of publicly funded legal assistance.  He referred her case to the Duty Lawyer Service (the “DLS”).  When DLS refused to represent her, he reminded her of her right to private legal representation, if she desired.  The Applicant has raised no specific complaint of unfairness. She could have no valid complaint about procedural unfairness in the immigration officer’s processing of her Request.

18.  The Court is also satisfied that the immigration officer had correctly set out the law and key legal principles applicable to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence.  On any objective view of the evidence and information presented by the Applicant in her Request, there are no real changes in circumstances since the previous claim was finally determined, let alone substantial changes.  It was therefore open to the immigration officer to make that finding as he did.  The officer gave full reasons for his finding.   This is a finding of fact solely for the decision maker, which the Court in an application for judicial review may not interfere.  The Court could not detect any error of law or irrationality in that finding of fact or in the 2025 Notice.  The 2025 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational. 

Conclusion

19.  For the above reasons, the proposed judicial review has no realistic prospect of success.  Her application for leave to apply for judicial review of the Director’s decision in his 2025 Notice of Decision is therefore 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