TRAN VAN THANH v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

TRAN VAN THANH v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

The Director's refusal was lawfully reached: the Applicant failed to provide sufficient written evidence of any significant change of circumstances under s37ZO and the proposed subsequent claim was essentially the same as previously finally determined; there was no error of law or procedural unfairness and no...

Source-derived case information.

Citation
[2023] HKCFI 2119
Parties
Applicant: Tran Van Thanh; Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 August 2023
Case Number
HCAL939/2023
Procedural Posture
Judicial Review Leave to Apply / Leave Application Refused and RPO Made
Outcome
Leave to apply for judicial review refused; Restricted Proceedings Order made against the Applicant
Legal Topics
Non Refoulement, Torture Claims, Leave to Apply for Judicial Review, Restricted Proceedings Order, Abuse of Process, Internal Relocation, State Protection
Source Language
en
Immigration Law Constitutional Law Administrative Law Human Rights Non Refoulement Torture Claims Leave to Apply for Judicial Review Restricted Proceedings Order +3 more

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Parties

Tran Van Thanh

Applicant

Director of Immigration

Putative Respondent

Procedural Posture

Judicial Review Leave to Apply / Leave Application Refused and RPO Made

Legal Issues

  1. 1 Whether the Director lawfully refused permission for a subsequent torture/non-refoulement claim under section 37ZO Immigration Ordinance
  2. 2 Whether the Applicant advanced sufficient new evidence of a significant change of circumstances to give a subsequent claim a realistic prospect of success
  3. 3 Whether the Director acted irrationally or procedurally unfairly (Wednesbury/unreasonableness challenge)

Ratio Decidendi

The Director's refusal was lawfully reached: the Applicant failed to provide sufficient written evidence of any significant change of circumstances under s37ZO and the proposed subsequent claim was essentially the same as previously finally determined; there was no error of law or procedural unfairness and no prospect of success, therefore leave is refused; because the Applicant persistently sought to re-litigate a finally determined non-refoulement claim the court properly made a Restricted Proceedings Order to prevent abuse of process.

Court Disposition

Leave to apply for judicial review refused; Restricted Proceedings Order made against the Applicant

Orders

  • The Applicant is prohibited from commencing or continuing any proceedings relating to any non-refoulement claim in the High Court without the leave of a Judge of the Court of First Instance
  • All leave applications under this order must be made to the Judge in charge of the Constitutional and Administrative Law List or a Judge designated by the Chief Judge of the High Court