NGUYEN THI NHUNG v. DIRECTOR OF IMMIGRATION

HCAL 1024/2021

[2026] HKCFI 2442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1024 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 20 July 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 4 June 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 2 written requests dated 11 December 2020 and 28 January 2021 respectively.

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

2.  The applicant is a female Vietnamese who sneaked into Hong Kong illegally on 22 December 2015 and was granted bail on 24 December 2015. She then raised her first non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism.

3.  The Director rejected the applicant’s first non-refoulement claim on 28 February 2017 (“the Director’s 2017 Decision”). On 29 October 2018, the applicant filed a Notice of Appeal/Petition (“NOAP) dated 26 October 2018 to appeal/petition against the Director’s 2017 Decision to the Torture Claims Appeal Board (“the Board”). The applicant’s late filing of his NOAP was rejected by the Board on 8 August 2019.

4.  The applicant was repatriated to Vietnam on 28 August 2019.

The applicant’s subsequent claim

5.  The applicant re-entered Hong Kong illegally on 2 October 2020 and was granted bail on 7 December 2020.

6.  On 11 December 2020 and 28 January 2021, the applicant made the Request and continued to claim that she would be harmed or killed by her creditor due to her failure to repay a loan if refouled to Vietnam, which was the same ground for her previous non-refoulement claim.

7.  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 2021 Decision.

The applicant’s case

8.  In her first claim for non-refoulement protection, the applicant claimed that she would be harmed or even killed by her creditor if refouled to Vietnam. In the Request, the applicant claimed that she faced threat from the same creditor and the creditor refused to wait further and did not give her any chance to raise money to repay the loan.

9.  Thus, the applicant’s claim in the Request was related to her previous claim. The Director considered that the applicant’s risk arising from her inability to repay the loan to the creditor had been duly assessed previously. Hence, the Director decided that the applicant’s claimed risk in her intended subsequent claim could not amount to a significant change of circumstances and had no realistic prospects of success.

Disposal on paper

10.  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

11.  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).

12.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 20 July 2021. In her affirmation, the applicant merely reiterated the bases of her non-refoulement claim, namely that if she returned to Vietnam, she would face risk of being killed or tortured by her creditor as she could not repay the loan.

Discussion

13.  First of all, the applicant’s risk from her creditor had been duly assessed by the Director in the Director’s 2017 Decision. Her risk that was raised in the Request had also been duly considered when the Director was dealing with the Request.

14.  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.”

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

16.  The Director found that the basis of the subsequent claim was the same as that of the applicant’s previous claim.

17.  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 prospects of success.

18.  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.

19.  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.

20.  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

21.  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