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HCAL 1651/2021
[2026] HKCFI 1690
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1651 of 2021
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BETWEEN
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Bui Thi Tham |
Applicant |
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and |
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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 applicant had previously lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the applicable risks[1] (“the previous claim”). The Director refused her claim. She appeal to the Torture Claims Appeal Board (“the Board”). The Board dismissed her appeal on 14 February 2019 and she was repatriated to Vietnam on 8 March 2019.
2. The applicant entered Hong Kong illegally again and was arrested by police on 29 March 2021. She was referred to the Immigration Department where she made a subsequent claim under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”). By Notice of Decision dated 29 October 2021 (“the Director’s Decision”), the Director refused her subsequent claim.
3. This is the applicant’s application for leave to apply for judicial review of the Director’s Decision.
4. The applicant did not request a hearing. I shall deal with her application on the papers.
5. The Director’s Decision is in Chinese. This Form CALL-1 is in English because the applicant submitted her affirmation in support of her application in English.
The previous claim
6. The applicant is a national of Vietnam. She is an illegal immigration. In her previous claim, she claimed that, if refouled, she will be harmed or killed by her creditor because she was unable to repay her loan.
7. In her subsequent claim, she relied on the similar reason that she will be harmed or killed by her creditor, though a different creditor, if she is returned to Vietnam because she was unable to repay her loan.
The subsequent claim application
8. Under section 37ZO of the Ordinance, she 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.
9. The applicant has submitted additional information to the immigration officer to support her application. Having considered the additional materials, the immigration officer came to the conclusion that there was no significant change of circumstances referred to under section 37ZO.
10. The immigration officer therefore found that the applicant failed to satisfy those condition under section 37ZO of the Ordinance and dismissed her application for subsequent claim.
The application for leave to apply for judicial review application
11. The applicant has filed Form 86 on 6 December 2021 for leave to apply for judicial review of the Director’s Decision.
12. In her affirmation in support of her application, the applicant said that she was not given an opportunity to clarify her case and situation in her 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. For the reasons given by the immigration officer, the immigration officer took the view that the applicant failed to satisfy the conditions in support of her application for subsequent claim.
16. The application’s ground in support of this application does not assist her as under the law, the Director may assess her application without a hearing. She has not stated what issues she would have to clarify, given the opportunity.
17. I find that there is no realistic prospect of success in the applicant’s subsequent claim. I dismiss her application for leave to apply for judicial review of the Director’s Decision.
Disposition
18. 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
Bui Thi Tham
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 (24529) 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:
(1) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(2) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
(3) 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
(4) 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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