PHAM THI THAO v. DIRECTOR OF IMMIGRATION

HCAL 372/2022

[2026] HKCFI 1045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 372 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   Extension of time for the application for leave to apply for judicial review of the decision of the Director of Immigration dated 21 May 2021 be refused.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 23 May 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Director of Immigration dated 21 May 2021 (respectively, the “Director” and the “Director’s Decision”). By that decision, the Director refused to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by the Director on all applicable grounds under the Unified Screening Mechanism (USM) on 9 June 2017. Her appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) was rejected on 29 June 2018.

2.  On 12 July 2019, the Applicant was removed to Vietnam. However, in early January 2021 i.e. after a period of 1.5 years, she sneaked back into Hong Kong and was arrested by the Hong Kong Police on 3 March 2021. She raised her request to make a subsequent claim through Duty Lawyer Service on 9 April 2021.

3.  The Applicant is absent from the oral hearing before me. I have considered the Leave Application based on the materials available.[1]

Discussion

4.  The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of the High Court, Cap. 4A.

5.  In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[2]

6.  First, the delay in question is substantial. The Applicant is some 9 months late with her application. She has however neither applied for an extension of time nor provided any explanation for the delay in her affirmation made in support of the Leave Application.

7.  Second, regarding merits, I am not persuaded that the Applicant’s intended application for judicial review of the Director’s Decision is reasonably arguable with any realistic prospect of success.[3]

8.  A decision by the Director in refusing to allow an applicant to make a subsequent claim under section 37ZO of the Immigration Ordinance Cap. 115 is not appealable to the Board.[4]

9.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[5] In seeking to challenge the Director’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in her supporting affirmation. As matter stands, both documents are virtually devoid of substance, save for repeating her claims and a bare assertion that the Director’s Decision “was also wrong”. The Applicant has failed to identify any valid or effective public law grounds.[6]

10.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Director’s Decision for any errors of law, procedural unfairness or irrationality.

11.  Under section 37ZO of the Ordinance, there are constraints on an applicant who has previously made a non-refoulement claim to make a subsequent claim:-

“(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…”

12.  As can be seen in the Director’s Decision, the Director duly considered the circumstances provided by the Applicant in the letter received by the Director via the Duty Lawyer Service. In this regard, I should mention that the Director had, by letters respectively dated 16 April 2021 and 3 May 2021 sent to the Applicant’s legal representative, requested the Applicant to provide further information and evidence in support of her request to make a subsequent claim. The Director did not receive any reply.

13.  The Director refused to allow the Applicant to make a subsequent claim. Based on all the information and evidence available, the Director did not accept that there has been a significant change of circumstances since the Applicant’s previous claim was finally determined. In particular, her current fear is again stemmed from her failure to repay the debt albeit it concerns another new creditor. The Director also did not accept that the change, when taken together with the material previously submitted in support of her previous claim, would give the subsequent claim a realistic prospect of success.

14.  In particular, the Director was entitled to and did take into account the fact that the risk of the Applicant returning to her home country because of the private money dispute with her past creditor had been fully considered and assessed in her previous claim before the same was rejected.

15.  Therefore, I do not find any error of law or procedural unfairness or irrationality on the part of the Director in the consideration and assessment of the Applicant’s request to make a subsequent claim.

16.  Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious. Conversely, allowing her to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent. For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

17.  I see no good reason to extend time for the Applicant to apply for leave to seek judicial review. I accordingly dismiss the Leave 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