NGUYEN THI NHUNG v. DIRECTOR OF IMMIGRATION

HCAL 1914/2023

[2026] HKCFI 3264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1914 OF 2023

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 24 October 2023, 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 5 October 2023 (“the Director’s 2023 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 the applicant’s written request dated 25 July 2023.

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

2.  The applicant is a female Vietnamese who sneaked into Hong Kong illegally on 2 March 2016 and was arrested by the police on 3 March 2016. She then raised her first non-refoulement claim on the then applicable grounds, namely Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3], under the Unified Screening Mechanism (“the USM”).

3.  The Director rejected the applicant’s non-refoulement claim on the grounds of Torture Risk, BOR 3 Risk and Persecution Risk under the USM on 7 September 2016 (“the Director’s 2016 Decision”). The applicant filed an appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s 2016 Decision on 15 September 2016.

4.  Before the Board determined the said appeal/petition, the Director made a further decision on 20 November 2017 rejecting the applicant’s non-refoulement claim on the ground of BOR 2 Risk[4] under the USM.

5.  Thereafter, the Board rejected the applicant’s appeal/petition on all the applicable grounds, including BOR 2 Risk, by way of its decision dated 1 December 2017.

6.  The applicant was repatriated to Vietnam on 16 August 2019.

The applicant’s subsequent claim

7.  The applicant claimed that she re-entered Hong Kong illegally on 24 June 2023. She was arrested by the police on 27 June 2023.

8.  On 25 July 2023, the applicant made the Request and claimed that if refouled to Vietnam, she would be harmed or killed by her creditor due to her failure to repay a loan which was borrowed in the name of her mother. The applicant’s previous non-refoulement claim was based on her fear of her ex-husband. The applicant successfully divorced her husband after she was refouled to Vietnam.

9.  After consideration of the applicant’s previous non-refoulement claim, the Request, the information submitted by the applicant in support of the Request, the Director refused the Request by way of the Director’s 2023 Decision.

The applicant’s case

10.  In her first claim for non-refoulement protection, the applicant claimed that she would be harmed or even killed by her ex-husband if refouled to Vietnam. In the Request, the applicant claimed that she faced a risk of being harmed or killed by a creditor from whom her mother took out a loan on behalf of the applicant and the applicant was unable to repay.

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 her intended judicial review in Form 86, nor in her supporting affirmation dated 24 October 2023. She only stated in the affirmation that if refouled to Vietnam, she would face a genuine and substantial risk of being subjected to torture or even killed by her creditor and his men since she was insolvent.

Discussion

14.  First of all, the applicant’s risk from her creditor (which was raised in the Request) had been duly considered by the Director when the Director was dealing with the Request.

15.  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.”

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

17.  Although the Director considered that the applicant’s claimed fear of her creditor was a new risk, the Director found no evidence to support the applicant’s bare allegation that the creditor would harm or kill her upon her refoulement to Vietnam. The Director also found that reasonable state protection would still be available to the applicant and that internal relocation within Vietnam remained to be a viable option to the applicant to reduce or negate any perceived risk from the creditor.

18.  The conclusion on the availability of state protection and the viability of internal relocation was the same as the previous decisions of the Director and the Board. The Director found that the applicant’s belief that state protection would not be available to her was her own speculation without any evidence in support. Likewise, the applicant’s belief that the creditor could locate her nationwide was also the applicant’s own assumption.

19.  Thus, despite that the Director did not challenge the authenticity of the copy of loan agreement between the applicant’s mother and the creditor, the Director did not find such document could advance the applicant’s case further and give the subsequent claim a realistic prospect of success.

20.  In the circumstances, 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 her previous claim would give her subsequent claim any realistic prospect of success.

21.  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.

22.  Having considered the applicant’s Request, and having rigorously examined the Director’s 2023 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 2023 Decision or procedural unfairness in the making of that decision. The Director’s 2023 Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational.

23.  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

24.  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

Form CALL-1