Luong Thi Thu Ha v. Director of Immigration

HCAL 542/2025

[2025] HKCFI 2678

IN THE HIGH COURT OF THE

HONG KO NG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 542 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 30 December 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.The Applicant is a 36-year-old national of Vietnam who entered Hong Kong illegally on 25 June 2021 and surrendered to the Immigration Department on 26 July 2021 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her unpaid debts.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 26 January 2022 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 her 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”).

4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 100 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

5.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 14 March 2023 after hearing her in evidence and submissions and upon finding no merits in her claim or appeal, and that it also confirmed the Director’s decision.

6.The Applicant never sought leave from the court to apply for judicial review of the Board’s decision, and was subsequently repatriated to Vietnam on 25 August 2023.

Request To Make Subsequent Claim

7.Some 4 months later on 1 January 2024 the Applicant sneaked back into Hong Kong and was arrested by police on 25 March 2024, whereupon she in writing to the Immigration Department requested to make a subsequent claim on the basis that upon her repatriation to Vietnam in August 2023, her creditor from her previous claim had continued to press her for repayment of her debts with threats to kill her, and hence she again left Vietnam to come to Hong Kong to save her life.     

8.There are however 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.”

9.Accordingly, the Director by a letter dated 26 June 2024 required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did by way of 6 letters and statements in which she provided further details of the threats made by her creditor against her over her outstanding debts.

10.By a Notice of Decision dated 30 December 2024 Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was the same as that of her previous claim, and that she failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been any significant change of circumstances since her previous claim was determined, or that 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 in view of the unchallenged findings by both the Director and the Board in her previous claim of the availability of state protection and internal relocation to similarly negate whatever risk that may arise from her intended subsequent claim.

11.On 3 March 2025 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge of the Director’s decision, nor was she able to do so at the hearing of her application.

12.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error 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, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 3^rd day of July 2025

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