Dang Huu Luong v. Director of Immigration

HCAL 1913/2025

[2025] HKCFI 4767

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1913 of 2025

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

Following;

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 27 August 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 21 August 2025 (the “2025 Notice”) refusing his request to make a subsequent claim (the “Request”).  

2.The Applicant is a Vietnamese national.  He claimed he had sneaked into Hong Kong on 27 August 2023 and made a non-refoulement claim by written signification dated 31 August 2023 (the “previous claim”).  His previous claim was rejected by the Director’s Notice of Decision dated 15 November 2023 (the “2023 Notice”).  His appeal against the 2023 Notice was dismissed by the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 1 March 2024 (the “Board’s Decision”).  On 8 March 2024, he applied for leave to apply for judicial review of the Board’s Decision in HCAL 444/2024, but he withdrew his application on 15 April 2025.  On 8 May 2024, he applied to re-open his leave application.  But his application was refused by the Court of First Instance on 20 May 2025.  His previous claim was finally determined and has run its full course.

3.On the same day as the Applicant applied to re-open his leave application, he made the Request for making a subsequent claim by letter.  He also requested legal assistance to prosecute his Request. His case was referred to the Duty Lawyer Service (the “DLS”).  But the DLS refused to act for him.  In the immigration officer’s letter dated 3 June 2025 in English with Vietnamese translation, the Applicant was informed of the decision of the DLS and advised to arrange his legal representation if he saw fit.  He was reminded of the requirements for making a subsequent claim and to provide further evidence, if any, on or before 17 June 2025 and advised of the procedure in making extension of time to comply.  He was also informed that if the department did not hear from him on or before the deadline, his Request would be assessed based on all available information only.  The Applicant did not respond.  After considering all available information and evidence, the immigration officer on behalf of the Director rejected his Request by the 2025 Notice.  He now applies for leave to apply for judicial review of that 2025 Notice.

The Applicant’s previous claim

4.The Applicant’s personal background, the factual background leading to his previous claim, the basis of his previous claim and the arguments he 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, the Applicant claims that if returned to Vietnam, he will be harmed or killed by a loan shark and his men for being unable to repay a loan borrowed from him.  The Board and the immigration officer in the previous claim found that (i) the claimed future risk of harm upon his return to Vietnam was low and not likely to materialize; and (ii) internal relocation and reasonable state protection would be available to him upon his return. 

Additional information in support of the subsequent claim

5.In his Request, the Applicant reiterated the facts of his case and his feared risk of harm.  He explained that he withdrew his leave application thinking he could resolve his problems but had to apply to re-open it because things were not going as he thought.  He said recently, the loan shark and his followers are still trying to find him and threaten him.  The loan shark and his men were angry and fierce.  They have no humanity and disregard the law.  The Applicant fears he could not access police protection because of corruption and internal relocation is not feasible because the loan shark could locate him through the nationwide social network of gangsters and clandestine connections with corrupt people in the government.  He repeated his fear that his life will be at seriously risk, if returned to Vietnam.  He produced some articles about debtors being killed by loan sharks in Vietnam.  But he did not respond to the immigration officer’s request for confirmation that the information therein contains his personal information.

The Director’s decision in the 2025 Notice

6.The immigration officer found the Applicant’s claim under the Request is based on the same source of fear, ie the loan shark and his men.  The purpose of harm is also the same, ie to enforce an unpaid loan.  All these had been thoroughly considered under his previous claim and rejected as not substantiated.  It found the articles and links produced by the Applicant depicted separate incidents in different parts of Vietnam and there was no indication that they are specific to the Applicant’s personal circumstances. At the highest, they can be taken as the general country of origin information (“COI”) in Vietnam. 

7.As for his renewed assertion about corruption in government and lack of state protection, these had also been considered by the Board and rejected for good reasons as stated by the Board.  The immigration officer also considered updated COI but found there was no change of situation in Vietnam that would render state protection and internal relocation unavailable.  She therefore considered that the Applicant had failed to establish that there has been a significant change of circumstances since the Applicant’s previous claim was finally determined.  Hence, she refused the Applicant’s Request.

Grounds for judicial review

8.The Applicant did not advance any grounds of application in his Form 86 or supporting affirmation.  At the hearing, after the legal principles applicable to judicial review was explained to him, the Applicant confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision.  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 sought to be reviewed.

9.Having considered the Request, the Board’s Decision in the previous claim and having rigorously examined the 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.  She advised the Applicant on the law and procedure in prosecuting his Request and referred his claim to the DLS, though the DLS refused to act for him.   On the basis of all the information provided by the Applicant, the immigration officer found the Applicant had failed to establish that there has been a significant change of circumstances since his previous claim was finally determined.  As she found there has been no significant change of circumstances, she could not go on to find that 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.  The Applicant’s failure is obvious.   These are finding of facts which are exclusively within the province of the Director to make, 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 Notice.  The 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

10.For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s Notice is refused.

Dated the 9^th day of October 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