Hoang Thi Thu v. Director of Immigration

HCAL 174/2023

[2026] HKCFI 4619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 174 OF 2023

BETWEEN

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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration dated 13 September 2021 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

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 (“Director”) dated 13 September 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) under all the applicable grounds, while her appeal to the Torture Claims Appeal Board (“Board”) was subsequently also withdrawn by her and that the Director’s decision was then confirmed as final by the Board.

2.The Applicant is a 43-year-old national of Vietnam who previously entered Hong Kong illegally on 2 August 2015 and surrendered to the Immigration Department on 7 August 2015 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 outstanding debts.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 7 December 2016 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 95 million people spread across a vast territory of more than 331,000 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 Hanoi or Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

5.On 14 December 2016, the Applicant lodged an appeal to the Board against the Director’s decision, but subsequently on 3 July 2018 at the hearing of her appeal before the Board, the Applicant confirmed that it was safe for her to return to Vietnam and hence she requested that her appeal be withdrawn so that she could return to her home country, and upon being satisfied that her request to withdraw her appeal was freely sought, that she was fully aware of the consequences of such withdrawal, and that she had good reason to do so that the Board by a decision of the same date withdrew and dismissed her appeal and confirmed the Director’s decision, and on 3 August 2018 the Applicant was repatriated to Vietnam.

Request To Make Subsequent Claim

6.Some 2 ½ years later on 29 January 2021 the Applicant sneaked back into Hong Kong and was arrested by police on 26 February 2021, and after she was referred to the Immigration Department for investigation, she requested to make a subsequent claim on the basis that upon being repatriated to Vietnam in 2018, her creditor of her previous claim is still coming after her with threats as she is still unable to repay her debts, and hence she still fears of being harmed or killed by her creditor if refouled to her home country.   

7.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.”

8.Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did by submitting another statement in which she essentially repeated the same information as contained in her initial request to make a subsequent claim.    

9.By a Notice of Decision dated 13 September 2021, the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially 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 given the unchallenged findings by the Director in her previous claim of the availability of both state protection and reasonable internal relocation to the Applicant upon her return to Vietnam to similarly negate whatever risk that may arise from her intended subsequent claim.

10.On 7 February 2023 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Director reached the decision wrongly in assessing her non-refoulement claim in that the decision as not reasonable or fair as required by the Wednesbury test in failing to recognizing that her right to life must be protected by criminal law from the killing that she may face if deported back to her home country;

(2)  That the Director failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claim;

(3)  That the Director acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the personal background and experience of the Applicant into account in assessing her claim;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give weight to such evidence and instead ruled otherwise against the Applicant’s claim;

(5)  That the Director was procedurally unfair or improper when assessing whether or not to accept explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer her response;

(6)  That the Director had clearly shown unfair attitude against the Applicant which in itself is enough to render his decision void;

(7)  That the Director failed to attain high standards of fairness in failing to recognize the Applicant’s assertions that corruption and incompetency of the administration in her home country is still a very serious problem as various human rights organizations have compiled reports that stated testament to such assertion that the Director’s decision should be considered unreasonable in the scope of public law;

(8)  That the Director’s decision to refuse the Applicant’s claim was wrong and irrational that leave should be granted for it to be judicially reviewed.  

11.The Applicant was however by then already out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12.As the last day of the 3-month period for her to file her Form 86 fell on 13 December 2021, the Applicant was therefore some 13 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of 13 months must be considered as extremely substantial and inordinate, for which she did not provide any explanation in her Form or supporting affirmation, nor did she at the hearing of her application, and as the record shows that the Director’s decision was sent on the same day of 13 September 2021 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for such serious delay of the Applicant.        

14.As for the merits, if any, of her intended application, those grounds put forward by the Applicant as noted above are all just bald and bare assertions containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to her case, or in what way did the Director err in the decision or that the decision was unfair or unreasonable, or that the Director was procedurally improper or unfair in the assessment of the Applicant’s request or failed to apply high standards of fairness in the assessment, or what relevancy was state acquiescence to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official or political element or involvement at all as correctly found in his previous claim. As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant, nor was she able to do so at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge or any merits in her intended application.   

15.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, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.           

Dated the 18^th day of August 2026

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