Le Thi Thu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1518/2022

[2026] HKCFI 4789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1518 of 2022

BETWEEN

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 the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:

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

Observations for the Applicant:

1.By a Form 86 filed on 16 December 2022 (“Form 86”), the applicant applied for leave to apply for judicial review against the decision of the Director of Immigration (“Director”) dated 15 December 2022 rejecting the applicant’s 2^nd non-refoulement claim (“Director’s Decision”).[1]

2.I refer to the Director’s Decision for the background of the applicant, the basis of the claim, the evidence and the argument the applicant has relied upon, which will not be repeated herein. It is notable that the non-refoulement claim of the applicant leading to Director’s Decision was in fact the 2^nd claim of the applicant after the first claim had been refused by the Board in its decision dated 24 May 2018 leading to his repatriation to Vietnam on 18 December 2018 (see paragraph 3 of the Board’s Decision). On 7 June 2022, the applicant entered Hong Kong illegally. He was arrested by the police on 2 September 2022, and made the 2^nd non-refoulement claim in writing on 22 October and 4 November 2022 (see paragraphs 4 and 5).

3.The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision maker in the present matter is the Director. Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board. However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14.

4.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.

5.The present application for leave is meant to be a filtering process, and I am not expected to give elaborated reasons for my decision: see Re Zunariyah [2018] HKCA 14, at paragraph 23. I will therefore provide brief reasons for my decision as follows.

Discussion

6.The applicant has put forward the following grounds in the Form 86 for the intended application for judicial review:

“2. I believe that the Director of Immigration reached the Decision wrongly in assessing my non-refoulement claim. I believe the decision was not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is mainly protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from killings that I may face if I am deported back to my country.

3. From the Director's Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim.

4. The Director acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.

5. The Director was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me and unreasonably requires me to response to questions that I was not in a position to offer any response.

6. I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decisions. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.

7. The Director of Immigration's decision to refuse my claim was also wrong and irrational. I humbly ask this Honorable Court to grant leave to have the Decision judicially reviewed.” 

7.At the hearing on 14 May 2026, the applicant was absent.

8.Applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Director’s Decision.

9.Section 37ZO of the Immigration Ordinance, Cap. 115 (“Ordinance”), provides that no subsequent non-refoulement claim can be made unless there has been a significant chance of circumstances which, when taken together with the materials previously supported in the previous claim, would give the subsequent claim a realistic prospect of success:

“(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.”

10.I do not see any error of law in the Director’s Decision.

11.The Director’s Decision has also set out the procedural history of the applicant’s 2^nd non-refoulement claim, including the details of the written submissions made by the applicant with the assistance of the Duty Lawyer Service on 28 November 2022. I see no procedural irregularities or unfairness. On the face of the Director’s Decision, no Country of Origin Information was referred to. Therefore, the applicant’s intended grounds of judicial review contending that the Director’s use of Country of Origin Information was a procedural unfairness is based on a wrongful factual assertion.   

12.After a detailed analysis of the applicant’s evidence given in the 1^st as well as the 2^nd non-refoulement claims, the Director found no significant change of circumstances after the applicant had been repatriated to Vietnam in 2018. Based on the available materials, the conclusions of the Board were clearly justifiable. None of the intended grounds for judicial review proposed by the applicant concern the Director’s finding of lack of significant change of circumstances as analysed in the Director’s Decision. I do not see any basis to suggest that the Board was irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.

13.I therefore dismiss the application for leave to apply for judicial review under the Form 86.

Dated the 24^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