VU THI THUY v. DIRECTOR OF IMMIGRATION

HCAL 1768/2025

[2025] HKCFI 4530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1768 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;

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 11 August 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 4 August 2025 (the “2025 Notice”) refusing her request to make a subsequent claim (the “Request”).  She is also the applicant in HCAL 1274/2021 which was heard before this Court immediately before the present leave application.  

2.  The Applicant is a Vietnamese national.  She sneaked into Hong Kong a second time in September 2020 and made a non-refoulement claim by written submission on 20 January 2021 (the “previous claim”).  Her previous claim was rejected by the Director’s Notice of Decision dated 22 April 2021 (the “2021 Notice”).  Her appeal against the 2021 Notice was dismissed by the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 2 September 2021 (the “Board’s Decision”).  She sought leave to apply for judicial review of the Board’s Decision in HCAL 1274/2021.  

3.  While waiting for the determination of her leave application in HCAL 1274/2021, the Applicant made the Request for making a subsequent claim by letter dated 28 February 2025.  She also requested legal assistance.  Her case was referred to the Duty Lawyer Service (the “DLS”).  She was granted legal assistance by the DLS which subsequently submitted additional supporting information on her behalf to the Director.  After due consideration, the Director rejected her Request by the 2025 Notice.  She now applies for leave to apply for judicial review of that 2025 Notice.

The Applicant’s previous claim

4.  The Applicant’s personal background, the factual background leading to her previous claim, the basis of her previous 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.  In gist, she claims that if returned to Vietnam, she will be harmed or killed by a loan shark for being unable to repay a loan borrowed from him.

5.  The Board found her evidence minimalistic, inconsistent, evasive and not forthcoming and her case was made up of bald assertions.  It found her incredible and rejected her evidence.  It found the loan shark, her friend whom she relied on and partnered with, the alleged loan and her pig farm are all fictitious.  Though unnecessary for the Board’s Decision, it found reasonable state protection would be accessible to the Applicant on her return to Vietnam and that she could avoid the harm and risk of harm, if real, by internal relocation.

Additional information in support of the subsequent claim

6.  In her Request, the Applicant claimed that she was informed by her son in Vietnam that the loan shark is still visiting her home looking for her whereabouts.  She repeated that she could not seek help from the government because of corruption and could not relocate to other cities because of difficulties and that she would be located by the loan shark through the nationwide social network of gangsters and clandestine connections with corrupt people in the government.  She repeated her fear that her life will be seriously at risk, if returned to Vietnam.

7.  The additional information submitted by the Applicant includes a reiteration of the information she had submitted in her Request. She added that the loan shark harassed and assaulted her son and son-in-law when he came to her home to look for her. She produced two blur photographs, presumably showing some injuries suffered by a blurred figure.  She also submitted some online links and news articles about creditors killing debtors in Vietnam. 

The Director’s decision in the 2025 Notice

8.  The immigration officer found the Request and additional information are just a reiteration of the Applicant’s case in the previous claim.  The loan shark, the source of fear and the purpose of harm are the same.  Though the harassment and assault on the Applicant’s son and son-in-law is different, nevertheless, they were inflicted for the same purpose to coerce the Applicant to repay her debt.  The immigration officer considered the two photographs unhelpful and insufficient to corroborate the core elements of her claim as they do not show the injuries clearly, how the injuries were afflicted, or the identity of the person injured.  As the online links and articles are not specific to the Applicant’s personal circumstances, they could only provide general reference of the country condition in Vietnam.

9.  As for her renewed assertion about corruption in government and lack of state protection, these had been considered by the Board and rejected for good reasons as stated by the Board.  The immigration officer also updated himself with latest available country of information (“COI”) from authoritative and credible sources such as the 2023 Country Reports on Human Rights Practices: Vietnam issued by the US Department of State and Country Policy and Information Note: fear of illegal moneylenders, Vietnam, February 2025 published by the United Kingdom government.  These COI confirmed that the government has been making serious efforts in combating corruption in government, arresting and prosecuting even senior state officials involved in corruption and that the Vietnamese police and authorities are willing and capable to discharge their duties and respond quickly once they received reports on illegal moneylending or debt collection activities.  Adequate state protection would be available to the Applicant on her return to Vietnam.

10.  As for her renewed claim that internal relocation is infeasible, the issue had been considered and rejected by the Board in the previous claim.  The Board had found that given her personal background and working experience, it would not be unduly harsh or unreasonable for her to relocate to other cities in Vietnam to avoid the harm or risk of harm.  The immigration officer also rejected her claim about the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police as speculation unsupported by any evidence. The Applicant has not adduced any evidence that the situation in Vietnam had changed for the worst.

11.  In conclusion, the officer found the Applicant had failed to prove (i) that there has been a significant change of circumstances since the previous claim was finally determined or withdrawn and (ii) 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.  Hence, he refused the Applicant’s Request.

Grounds for judicial review

12.  The Applicant did not advance any grounds of application in her Form 86 or supporting affirmation. 

13.  Having considered the Request, the Board’s Decision in the previous claim and having rigorously examined the Notice with anxious scrutiny, the Court is satisfied that the immigration officer 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 properly analysed the evidence. The immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting her Request and referred her claim to the Duty Lawyer Service which subsequently acted for her.  On any objective view, there is no new evidence or information which suggest that there has been a significant change in circumstance since her previous claim was finally determined and that the change, if any, when taken together with the material previously submitted in support of her previous claim, would give the subsequent claim a realistic prospect of success.  These are finding of facts which are exclusively within the province of the Director to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  This Court could detect no error of law in the Notice.  The Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Furthermore, the subsequent claim is built on the previous claim which the Board found was fictitious.  The loan, the loan shark, the pig farm, the assaults are all fictitious and never existed.  It is difficult to see how the additional evidence added to the fiction could turn the fiction into a reality.  The proposed judicial review has no realistic prospect of success. 

Conclusion

14.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s Notice is 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