Tran Thi Dao v. Director of Immigration

HCAL 1309/2025

[2025] HKCFI 4386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1309 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

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 9 June 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 14 April 2025 (the “2025 Notice”), refusing her request for making a subsequent claim (the “Request”).

2.The Applicant is a Vietnamese national, now aged 40.  She entered Hong Kong illegally on 7 May 2019 and was arrested by the police on the same day for the offence of remaining in Hong Kong without the authority.  While serving her 15 months’ sentence of imprisonment she made a non-refoulement claim (the “previous claim”).  Her previous claim had been assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s Notice of Decision (the “2020 Notice”).  Her appeal was dismissed by the Board’s Decision (the “Board’s Decision”).  Her application for leave to apply for judicial review of the Board’s Decision under HCAL 1988/2023 immediately before this application was heard on 3 September 2025 and was refused.  

3.While her above leave application in respect of the Board’s Decision relating to her previous claim was still pending, she made the Request on 27 September 2024 to file a subsequent claim.  She also requested assistance from the Duty Lawyer Service (“DLS”) to prosecute her Request.  The Immigration Department referred her request for assistance to the DLS, but the DLS declined her request.  By a letter dated 26 November 2024 in English with Vietnamese translation, an immigration officer informed the Applicant of the decision of the DLS and advised her to consider seeking private legal representation if she saw fit to do so.  The officer also informed her of the procedures in making the Request and requested her to submit all available evidence and supporting documents by 10 December 2024.  The Applicant was also advised that if the officer did not hear from her on before the mentioned deadline, her Request would be assessed based on all the information then available.  The Applicant did not respond.  After considering the information provided by the Applicant, the officer on behalf of the Director issued the 2025 Notice refusing her Request.   The Applicant now applies for leave to apply for judicial review of the 2025 Notice.  This leave application heard on 3 September 2025 immediately after hearing her leave application relating to the previous claim.  

The previous claim

4.The Applicant’s personal background, the factual background leading to the previous claim, the basis of her previous claim, 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 claimed that if returned to Vietnam, she would be harmed or killed by a creditor because of her inability to repay an outstanding loan owed to him.  The Board upheld the Director’s decision refusing her application for protection.  It assessed her previous claim on the basis of the case as she asserted, but found as a matter of law she is not entitled to protection under any of the applicable grounds under the USM.

The Request and the intended subsequent claim

5.The Applicant now claims that recently the creditor and his followers are still coming to her house to look for her; her creditor had clandestine connections with the government; she is still at risk of being threatened or killed by her creditor; and her life will be in danger in Vietnam.  She also said Vietnam was struck by Tropical Storm Yagi and her house was destroyed.  She had no employment and nowhere to live.  She would be unable to repay her debt.  She could not seek help or protection from the government because the government or the police is corrupt. She could not relocate to other cities in Vietnam because there will be many difficulties and obstacles which she could not overcome.  She reiterated that her life will be in danger if returned to Vietnam.  She submitted some links to Vietnam newspapers and articles reporting killing of debtors by creditors in Vietnam as supporting evidence.  

The 2025 Decision

6.The immigration officer found the basis of Applicant’s intended subsequent claim, her perpetrator and source of conflict remain the same.  Though she had introduced a new allegation that her creditor and his followers have no humanity and disregarded the law, what they had allegedly done was no more than going to her house to look for her.  The immigration officer could find no indication that the creditor and his followers had done anything further to threaten her or cause harm to her family members.  All these risk of harm had been thoroughly considered and assessed in the previous claim as not substantiated.  The immigration officer therefore found her intended subsequent claim is just a reiteration or continuation of her previous claim. 

7.The Applicant’s allegation about the creditor’s clandestine connections with the government is a mere allegation not supported by specifics, particulars or evidence.  She offered nothing to refute the Board’s finding of lack of involvement, active or otherwise by a public official or other person acting in an official capacity in inflicting ill-treatment on her.

8.The Applicant’s concern about corruption in the government apparatus in Vietnam had been exhaustively explored by the Board.  After reviewing numerous authoritative and credible country of origin information (“COI”), the Board reached the conclusion that while the situation in Vietnam is not flawless, the government has been putting in great efforts to combat corruption, improve efficiency, effectiveness and professionalism of the police and to crack down illegal debt collection activities.  It found adequate state protection would be available upon the Applicant’s return to Vietnam.  The immigration officer is also satisfied on the basis of updated COI that she could seek protection or assistance from the authorities after her return to Vietnam.

9.As for the thirteen links and five new articles about killing of debtors by creditors submitted by the Applicant, the immigration officer found no indication that they are specific to the Applicant’s personal circumstances or experience.  Despite clear request for confirmation that they were personally related to her, the Applicant did not respond. The officer regarded the information as generic evidence which is not sufficient to support a claim of risk of harm. Indeed, some of the articles actually demonstrate the Vietnamese authorities are willing and able to respond quickly once they received reports on loan sharking activities. 

10.As for her claim that she could not return to Vietnam because her house had been destroyed by the tropical storm, the immigration officer adopted the finding of his colleague in the previous claim that being an able-bodied adult with many years of work experience she could relocate to other parts of Vietnam.

11.Lastly, the immigration officer rejected the Applicant’s claim that her creditor could locate her with the nationwide social network of gangsters and clandestine connection with corrupt elements in the government and police as mere assertions and not supported by any evidence.

Grounds for judicial review

12.At the hearing, after the legal principles applicable to judicial review was explained to the Applicant, she confirmed that she had no complaint about errors of law, procedural unfairness or irrationality in the Decision. However, she had advanced the following grounds of application in the Form 86:

(1)  the decisions of the Board and the Director are wrong, unreasonable and unfair;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Director acted unreasonably and procedurally unfairly by placing too much reliance on COI but failed to take her personal background and experience into account;

(4)  the Board was procedurally improper or unfair when assessing whether to accept her explanations, and unreasonably required her to respond to questions that she was not in a position to offer any response;

(5)  the Director acted unfairly by failing to take such argument into account and failed to give enough weight to such argument before reaching the Decision; and

(6)  the Board ought to have allowed her appeal.

13.The Court is familiar with these grounds which appear to be template grounds used in some other applications and have no bearing to the facts of this leave applications.  Some of these grounds are directed at the Board, some at the Director and some at both the Board and the Director.  These grounds are exact replica of her grounds raised in her leave application relating to the previous claim.  However, the Board has no appellate function in relation to the Director’s decision in a Request.  Ground (4) is therefore inapplicable.

14.In view of her admission that she had no complaints about error of law, procedural unfairness and irrationality, Grounds (1), (3), and (5) are deemed to have been withdrawn.  Further, in relation to Ground (3), the Court noted that the updated COI relied on by the immigration officer are all from authoritative, official and credible sources such as the United Kingdom government and the United States government.  These updates support the Board’s finding in the previous claim about government’s effort in combating corruption, increasing police efficiency and professionalism, cracking down illegal debt collection activities, increasing protection of the citizens and that adequate state protection was and still is available.  The Applicant offered no evidence whether in her previous claim or in her Request as to how her personal circumstances had any bearing on these matters or on availability and adequacy of state protection as a whole.   

15.Ground (2) is not engaged as the Applicant had adduced no evidence of state acquiescence in her proposed subsequent claim at all.  Though Ground (6) is directed at the Board, in fairness the Court assumes it is directed at the Director because the Board is not involved in proceedings relating to the Request.  The Court shall explore her Ground (6) in its overall scrutiny of the Decision. 

16.In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision and the Director’s Decision sought to be reviewed.

Overall scrutiny

17.Having considered the Request, the Board’s Decision in the previous claim and having rigorously examined the 2025 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 assisted her in applying for legal assistance from the DLS, though the DLS subsequently refused to represent her.  He reminded her of her right to seek private legal representation.

18.The immigration officer had thoroughly considered the alleged changes in circumstances relied on by the Applicant in paragraphs 13 to 20 of the 2025 Notice which are summarized in paragraphs 6 to 11 above.  He found that the Request was just a reiteration or continuation of the previous claim.  He found her source of harm, the nature and risk of harm in her intended subsequent claim are all the same as those in her previous claim.  He rejected her argument that state protection is not available and internal relocation not feasible as unsubstantiated.  He gave full reasons for his finding.   He was not satisfied that the changes in circumstances were significant and that the changes taken together with the materials previously submitted in support of the previous claim would give the intended subsequent claim a realistic prospect of success.  These are mixed finding of fact and of the law.  Insofar as these are finding of the law, the immigration officer is absolutely correct.  Insofar as these are finding of fact, they are exclusively within the province of the Director, which the Court in 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 2025 Notice or procedural unfairness in the making of the decision in the 2025 Notice.  The 2025 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. 

Conclusion

19.For the above reasons, the leave application is refused.

Dated the 23^rd day of September 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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001309_2025_files/the_Board's_Decision.pdf