Dinh Khac Sang v. Director of Immigration
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HCAL 1785/2025 [2026] HKCFI 4742 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1785 of 2025 BETWEEN
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 12 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 12 May 2025 (the “2025 Notice”) refusing his request to make a subsequent claim (the “Request”). 2.The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the 2025 Notice, the papers, the applicable legal principles and all the circumstances, the Court is satisfied that the leave application may be justly determined on paper without an oral hearing. Background 3.The Applicant is a Vietnamese national. He had arrived in Hong Kong on 28 November 2013 and overstayed since 6 December 2013 when he surrendered to the Immigration Department. On 18 March 2014, he lodged a claim for non-refoulement protection by written signification (the previous claim). 4.His previous claim under Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3] grounds was rejected by the Director’s Notice of Decision dated 14 January 2016 (the “2016 Notice”). On 25 January 2016, he filed a Notice of Appeal against the 2016 Notice. Later, his previous claim under BOR 2 Risk[4] ground was also rejected by the Director’s Notice of Further Decision dated 14 March 2017 (the “2017 Notice”). On 3 July 2017, he withdrew his appeal against the 2016 Notice on the ground that he would be safe returning to Vietnam. The Board assumed that the withdrawal included the 2017 Notice as well. On 10 July 2017, the Board confirmed his withdrawal and informed him that his appeal has now been disposed of and finally determined. On 26 July 2017, he was repatriated to Vietnam. 5.On 5 July 2019, two years later, he was arrested by the police. Enquiries revealed that he had left Vietnam on 28 June 2019 for the Mainland and then sneaked into Hong Kong on 30 June 2019. He was then removed to Vietnam on his request. 6.On 21 November 2024, he appeared in Hong Kong again and surrendered to the Immigration Department. He claimed to have sneaked into Hong Kong in mid-November 2024. Then, by an undated letter received by the Immigration Department, he requested for leave to make a subsequent claim for non-refoulement protection (the “Request”). His Request was rejected by the Director’s 2025 Notice. He now seeks leave to apply for judicial review of that 2025 Notice. The law and procedural history 7.Under the Unified Screening Mechanism, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance. The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success. In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant. 8.Upon receipt of the Request, an immigration officer referred it to the Duty Lawyer Service (“DLS”) for them to consider whether to provide publicly-funded legal assistance to the Applicant. On 15 April 2025, the DLS declined to act for him. On the following day, the immigration officer wrote to the Applicant informing him of the decision of the DLS and reminded him of his right to instruct private legal representation. He reminded the Applicant the requirement under section 37ZO for making a subsequent claim and requested him to provide further evidence, if any, on or before 30 April 2025 and the procedures for seeking extension of time to do so, if necessary. He also informed the Applicant that if he did not respond before the deadline, his Request would be assessed based on all available information. The Applicant did not respond. The immigration officer proceeded with his assessment. The previous claim 9.The Applicant’s previous claim was that if returned to Vietnam he will be harmed or killed by a member of the ‘black triad’ named Quan and his associates because his son failed to repay a loan owed to them. However, the immigration officer who processed his previous claim (the “previous case officer”) was of the view that (i) the future risk of the Applicant being harmed or killed by Quan and his associates upon his return to Vietnam was not likely to materialise and (ii) internal relocation alternatives and reasonable state protection would be available to the Applicant upon his return to Vietnam to avoid or mitigate the risk of harm, should such harm materialise. The intended subsequent claim and the immigration officer’s decision in the 2025 Notice 10.The Applicant’s intended subsequent claim is that upon his return to Vietnam, he would be harmed or killed by members of a triad society because he failed to repay 1.5 billion Vietnamese Dongs he had borrowed for buying a fishing vessel. He was unable to repay due to business setback. He had moved to various places in Vietnam to avoid his persecutors but it was not safe. On the advice of his friend, he came to Hong Kong to seek protection. 11.The immigration officer considered his intended subsequent claim fundamentally similar in nature to his previous claim which had been rejected by the previous case officer. He found the Applicant was only repeating the same source of fear as that in his previous claim which had been rejected as unsubstantiated. He found there was no indication in the intended subsequent that the Applicant had sought assistance from the police and/or the government. He did not accept the Applicant had shown there has been a significant change of circumstances since his previous claim was finally determined. He therefore considered the Applicant’s fear is mere speculation and bare assertion without evidential basis. 12.The immigration officer further found that even assuming that the Applicant still had an unrepaid loan and is still being pursued by his creditor, he did not accept there was a real risk that he would be subject to serious personal harm by the creditor as it had been considered in the previous claim that state protection would be available and internal relocation feasible to negate or reduce his perceived fears. The legal principles applicable to judicial review 13.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5]. Grounds for judicial review 14.The Applicant had not advanced any grounds of application in his Form 86. In his supporting affirmation, he reiterated that his life would be in danger, if returned to Vietnam. In effect, he is challenging the Board’s finding of fact, which is impermissible. In the absence of particularised grounds of application, the Court in an application for judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision. Overall scrutiny 15.Having considered the Request, the Director’s 2016 Notice and 2017 Notice, 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 applicable to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence. The immigration officer observed a very high standard of fairness. He referred the Applicant’s claim to the DLS, though the DLS subsequently declined to act for the Applicant. He properly advised the Applicant of the requirements in making a subsequent claim, the time limits for furnishing information and the procedure for applying for extension of time to comply. The Applicant could have no valid complaint about procedural unfairness in the immigration officer’s processing of his Request. 16.In essence, the immigration officer found there was no significant change in circumstances since the previous claim was finally determined. The reason he gave in the third sentence of paragraph 9 of the 2025 Notice is that the Applicant was “repeating the same source of fear as [his] previous claim”. This Court disagrees with this statement, if indeed that was what he meant. On the fact, it is clear that the source of fear in the intended subsequent claim is different from that in the previous claim, being sourced from a different creditor and for a different loan. But the nature of the Applicant’s fear of harm is the same, being risk arising from illegal debt collection activity which had been rejected in the 2016 Notice. When the 2015 Notice is read as a whole, particularly paragraphs 7 to 9, that is the impression which the third sentence in paragraph 9 would convey to a fair minded reader with knowledge of the surrounding circumstances. The immigration officer was imprecise with his use of language. Two other important and material surrounding circumstances are also the same, namely availability of state protection and internal relocation and the fact that the Applicant had not adduced any evidence or given any indication that these are no longer available. Though it may be argued that there are changes in circumstance, on the evidence it was open to the immigration officer to find as a fact that these changes are not significant and when taken together with the materials submitted in support of the previous claim would not give the intended subsequent claim a realistic prospect of success. It must then necessarily follow that the Applicant’s Request could not meet the requirements under section 37ZO. 17.These are essentially mixed finding of law and of fact. Insofar as it is finding of law, this Court could detect no error of law in the 2025 Notice. Insofar as it is a finding of fact, it is solely within the realm of the decision maker, which the Court in an application for judicial review may not interfere, save for errors of law, procedural unfairness and irrationality in the decision or procedural unfairness in the 2025 Notice. This Court could find no errors of law or procedural unfairness in the 2025 Notice. The decision in 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 18.For the above reasons, the Applicant’s leave application is refused. Dated the 20th day of August 2026
Form CALL-1 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] [2018] HKCA 524 at [14(1)] |
Cases cited in this judgment