NGUYEN DUC CUONG v. DIRECTOR OF IMMIGRATION

HCAL 1169/2021

[2026] HKCFI 2441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1169 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 19 August 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 15 July 2021 (“the Director’s 2021 Decision”), which refused the applicant’s request for making a subsequent claim for non-refoulement protection (“the Request”). The Request was made by way of a letter dated 7 April 2021 supported by the applicant’s written submission on 24 May 2021.

Procedural history of the applicant’s previous non-refoulement claim

2.  The applicant is a male Vietnamese who remained in Hong Kong illegally and was arrested by the Hong Kong police on 15 April 2015. The applicant was repatriated to Vietnam on 2 June 2015.

3.  The applicant entered Hong Kong again illegally on 7 July 2015 and surrendered himself to the Director on 13 July 2015. He raised his first non-refoulement claim on the same day.

4.  The Director rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism on 10 February 2017 (“the Director’s 2017 Decision”). The applicant filed an appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s 2017 Decision on 28 December 2017. However, the applicant applied to the Board to withdraw his appeal/petition on 6 March 2019. The applicant was refouled to Vietnam on 8 March 2019. The Board allowed the applicant’s withdrawal on 14 March 2019.

The applicant’s subsequent claim

5.  The applicant re-entered Hong Kong illegally again on 10 March 2021 and was arrested by the police on 20 March 2021.

6.  On 7 April 2021, the applicant made the Request and continued to claim that he would be harmed or killed by his creditor due to his failure to repay a loan if refouled to Vietnam, which was the same ground for his previous non-refoulement claim.

7.  On 24 May 2021, the applicant submitted his written submission to the Director concerning his Request.

8.  After consideration of the applicant’s previous non-refoulement claim, the Request, the written submission submitted by the applicant in support of the Request, the Director refused the Request by way of the Director’s 2021 Decision.

The applicant’s case

9.  In his first claim for non-refoulement protection, the applicant claimed that he would be harmed or even killed by his creditor if refouled to Vietnam. In the Request, the applicant claimed that he again borrowed from a creditor and the creditor threatened and harmed him when he failed to repay the loan.

10.  Thus, the applicant’s claim in the Request was similar to his previous claim. The Director considered that even though the applicant did not mention if the creditor from whom he was facing risk currently was the same creditor mentioned in his previous claim, the applicant’s intended subsequent claim was significantly similar to his previous claim, as both were due to his inability to repay a loan from a creditor. Hence, the Director decided that there was no significant change of circumstances.

Disposal on paper

11.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

12.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

13.  The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 19 August 2021, the applicant merely stated that the decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country. He also reiterated the bases of his non-refoulement claim, namely that his life was in danger, he was pursued by his creditor and gangsters, and he would be tortured, threatened and killed by them if he returned to Vietnam.

Discussion

14.  First of all, the applicant’s allegation in his affirmation that the Director’s 2021 Decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country is simply not true.

15.  The Director had on 13 May 2021 invited the applicant to supply further information and proof to support his Request and informed him that he had the right to seek legal assistance. The applicant did, at the request of the Director, supply his written submission on 24 May 2021.

16.  Thus, the applicant was given the opportunity to clarify his case and the situation in his country with the Director.

17.  The applicant’s risk arising from a creditor due to his inability to repay a debt had been duly considered when the Director was dealing with his Request.

18.  The making of a subsequent claim is stipulated by Section 37ZO of the Immigration Ordinance, Cap 115, which reads as follows:-

“Limitation on 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.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

19.  It is clear that the Director had fully complied with the above provisions when considering the Request.

20.  The Director found that the basis of the subsequent claim was the same as that of the applicant’s previous claim. The Director also found that, even if the present creditor was different from the creditor who threatened and/or hurt him in his previous claim, the basis of the intended subsequent claim was the same, namely, the applicant faced harm or threats of harm due to his inability to repay a loan.

21.  The Director considered that the applicant had failed to satisfy an immigration officer that there had been any significant change of circumstances or those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

22.  These were findings of facts within the exclusive ambit of the Director, and this court in a judicial review will not interfere with them save when such findings involved errors of law, procedural unfairness or irrationality.

23.  Having considered the applicant’s Request, and having rigorously examined the Director’s 2021 Decision with anxious scrutiny, this court is satisfied that the Director had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO, correctly identified the issues, and analyzed the evidence with due care. The Director observed a very high standard of fairness. This court finds no errors of law in the Director’s 2021 Decision or procedural unfairness in the making of that decision. The Director’s 2021 Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational.

24.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.  For reasons aforesaid, the Leave Application is dismissed.

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

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