VU VAN SANG v. DIRECTOR OF IMMIGRATION

HCAL 214/2023

[2026] HKCFI 4577

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 214 OF 2023

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 the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

INTRODUCTION

1.  The applicant is 40-year-old national of Vietnam who first entered Hong Kong illegally on 17 January 2017 and lodged a non-refoulement claim on the same day on the basis that if he was refouled to Vietnam he would be harmed or killed by his creditor Hung.

2.  By a Form 86 filed on 14 February 2023 (“Form 86”), the applicant applies for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 27 January 2023. However, the Board did not make a decision on any appeal brought by the applicant on that day. It was the Director of Immigration (“the Director”) who made a written decision on that day (“the Director’s 27 January 2023 Decision”), refusing to allow the applicant to make a subsequent claim for non‑refoulement protection after his previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all the applicable grounds.

3.  The original decision to reject the applicant’s non-refoulement claim was made by the Director on 28 November 2017 (“the Director’s 28 November 2017 Decision”). The applicant’s appeal to the Board on the Director’s 28 November 2017 Decision was dismissed by the Board on 27 December 2018 (“the Board’s Decision”). He was repatriated to Vietnam on 22 January 2019.

4.  The applicant named both the Board and the Director as the putative respondent in this case. As the Board did not make any decision on 27 January 2023, I amended the Form 86 on my own motion to include only the Director as the putative respondent.

5.  The applicant requested for a hearing but he was absent at the scheduled hearing on 6 August 2026. From the court record, the Notice of Hearing dated 13 July 2026 was sent to an address updated through the Immigration Department. Such updated address was, presumably, provided by the applicant to the Immigration Department in the first place.

6.  Bearing in mind what Barma JA held in Re Abdus Salam [2019] HKCA 1091 at [19], i.e. in an application for leave to bring judicial review proceedings, it is not essential for the applicant to attend an oral hearing, when the applicant fails to turn up at an oral hearing he/she had requested, it should be regarded as a decision to forego the right to the requested oral hearing and the court can deal with the application on paper. Applying the same logic, if the applicant failed to provide an updated address to receive notices from the court, it also signals a disregard of, and indeed a decision to forego, the right of attending an oral hearing.

7.  I therefore decided to proceed to deal with this application on paper notwithstanding the applicant’s absence at the hearing.

DISCUSSION

Previous Non-Refoulement Claim

8.  By the Director’s 28 November 2017 Decision, the Director rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non‑derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.  The applicant appealed against the Director’s 28 November 2017 Decision to the Board. In the Board’s Decision, it took into account of all the relevant circumstances of the applicant’s claim and rejected his evidence that he had incurred loan in Vietnam when running his business, and that he was subjected to death threats administered by his creditors as they coerced repayment. The Board concluded that the applicant’s claim failed on all applicable grounds. The applicant’s background, the relevant facts and relevant procedural history leading to the Board’s Decision have been set out therein and can be accessed through the hyperlink below[1].

10.  I noted that the applicant had never made any application for leave for judicial review against the Board’s Decision. He was repatriated to Vietnam on 22 January 2019, which was within a few weeks after the Board’s Decision. In any event, it is too late for the applicant to do so as, under Order 53, rule 4(1) of the High Court (Cap 4A), an application for leave to apply for judicial review should be made promptly and in any event within three months from the dated when grounds for the application first arose.

Request To Make Subsequent Claim

11.  On 7 February 2019, which was less than a month after he was repatriated to his home country, the applicant re-entered Hong Kong illegally. He was arrested by the police on 13 February 2019. On 28 November 2022, he wrote to the Immigration Department requested to make a subsequent claim on the basis that if he was to return to his country he would be harmed or killed by a new creditor from whom he had borrowed money from after he was repatriated to Vietnam. He feared that he would be harmed or killed by this new creditor Long or his younger brother Kiep.

12.  However, there are constraints on a claimant who has previously made a non‑refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(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.”

13.  Accordingly, the Director required the applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did by way of a letter from his solicitors which included some information that purportedly supported his subsequent claim.

14.  By the Director’s 27 January 2023 Decision, the Director refused to allow the applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that 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 given the unchallenged findings by the Director in his previous claim of the availability of both state protection and internal relocation alternatives to the applicant upon his return to Vietnam to negate whatever risk that may arise from his intended subsequent claim.

15.  On 14 February 2023 the applicant filed the Form 86 in these proceedings for leave to apply for judicial review of the Board’s decision dated 27 January 2023. As said, the Board did not make any decision on the subsequent claim. It was the Director who made the decision. In the grounds attached to the Form 86, the applicant made it clear that it was the Director and not the Board to whom he was seeking relief against. Thus, I will proceed to consider this application as if it was against the Director and not the Board as mentioned in the Form 86.

16.  Having considered the decision of the Director with rigorous examination and anxious scrutiny, in particular the requirements under Section 37ZO of the Immigration Ordinance for a subsequent claim, I do not find any errors of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the applicant’s request to make a subsequent claim. As I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss his 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