DINH DINH THANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2735/2025

[2026] HKCFI 806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2735 of 2025

Application for Leave to Apply for Judicial Review

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

Following:

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

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

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 11 December 2025, the applicant applied for leave to apply for judicial review (“Subsequent Leave Application”). The intended judicial review was against the decision of the Director dated 4 December 2025 (“Director’s Subsequent Decision”) refusing the applicant's request (“Request”) for making a subsequent claim.

Background

2.  Before the Subsequent Leave Applicant, the applicant in HCAL 2313 of 2019 filed a “Notice of application for leave to apply for judicial review” for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 1 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 4 September 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1].

3.  On 18 December 2024, this court dismissed the applicant’s Leave Application. On 3 June 2025, the Court of Appeal dismissed the applicant’s appeal against the court’s rejection of the Leave Application: CACV 556 of 2019 ([2025] HKCA 514. Shortly after the dismissal by the Court of Appeal, the applicant made the Request and the assigned Duty Lawyer provided his statement on 23 July 2025 to support the Request.

4.  The applicant’s claim was that, if refouled to Vietnam, he would be harmed or killed by his creditor to whom he owed an outstanding loan of 400 million Vietnamese Dong.

5.  Pursuant to the applicant’s request for a hearing of the Subsequent Leave Application, this court scheduled a hearing on 27 January 2026. The applicant appeared in person.

Discussion

6.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the Form 86, the applicant made general averments that the Director had failed to (i) give sufficient weight to the Country of Origin Information; (ii) properly assess the applicant’s explanations; and (iii) consider the serious corruption and incompetency of the administration in Vietnam that could supported his claim. The applicant’s supporting affirmation did not provide any grounds.

8.  At the hearing, the applicant stated that he had nothing to say and asked the court to help him remain in Hong Kong longer.

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]

The statutory provisions on subsequent claims

10.  Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

37ZO.

“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.”

11.  The Request was based on the applicant’s claim that the threat from the creditor continued, as he was still unable to repay the debt. In the statement the applicant submitted, the applicant claimed that through his contacts with his nephew, he learnt that the creditor continued to look for him at his home every one to two months. He was advised not to return home otherwise he would be killed by the creditor. The applicant further provided 11 items of digital link of news and articles concerning current situation of the brutalities inflicted by creditors to the debtors.

12.  Having considered the additional evidence, the Director found that the news articles did not specifically relate to the applicant’s personal circumstances. The Director examined the updated Country of Origin Information that showed there was an effective criminal system and organizations to combat corruption and the illegal acts of debt collectors. The Director therefore considered that the latest documentary evidence could not corroborate his claim that he would personally face risk of harm from his creditor if refouled. The updated documents the applicant furnished further supported that reasonable state protection was available in Vietnam. He found that internal relocation continued to be viable to the applicant. Having taken into account the Director’s Decision and the Board’s Decisions, the Director found that there was no sufficient grounds to believe that there was a significant change of circumstances that would negate the availability of state protection and internal relocation. The Director found that the Request had no realistic prospect of success, and thus refused the Request.

13.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant’s written grounds set out in Form 86 were vague and did not condescend to particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Order

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

Form CALL-1