VU THI THU HANG v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

HCAL 1197/2025 [2025] HKCFI 3110 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1197 OF 2025 BETWEEN Vu Thi Thu Hang Applicant and Director of Immigration Putative Respondent 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: Leave to apply for judicial review be refused. Observations for the Applicant: Introduction This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 14 May 2025 refusing to allow the Applicant’s second request to make a second subsequent claim for non-refoulement protection after her previous non-refoulement claim had been rejected by the Director while her appeal to the Torture Claims Appeal Board (“the Board”) was withdrawn at her own request, and that her subsequent request to make a subsequent claim was also refused by the Director. The Applicant is a 43-year-old national of Vietnam who first entered Hong Kong illegally on 1 July 2014 and surrendered to the Immigration Department on 31 July 2014 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 unpaid debts. Previous Non-Refoulement Claim By a Notice of Decision dated 15 November 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”). 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 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 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 Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her. The Applicant’s appeal against the Director’s decision was subsequently withdrawn by her upon her expressed desire to return to her home country, and was then dismissed by the Board on 28 December 2018 whereupon she was repatriated to Vietnam. First Request To Make A Subsequent Claim More than 3 years later on 10 February 2022 the Applicant sneaked back into Hong Kong, and on 24 February 2022 she surrendered to the Immigration Department and requested to make a subsequent claim on the basis that upon her repatriation to Vietnam in December 2018, she still faced threats from her creditor of her previous claim that she again left Vietnam on 6 February 2022 for China, and from there she then sneaked into Hong Kong to again seek non-refoulement protection. 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.” Accordingly, the Director by a letter dated 21 April 2022 required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did via her lawyer from Duty Lawyer Service (“DLS”). By a Notice of Decision dated 30 June 2022 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was 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. On 31 August 2022 the Applicant filed a Form 86 under HCAL 861/2022 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or supporting affirmation of the same date other than a regurgitation of her claim as before, and after finding no error of law or irrationality or procedural unfairness in the Director’s decision or any failure on his part to apply high standards of fairness in the consideration of the Applicant’s request, I was not satisfied that there was any prospect of success in her intended application, and upon her request to withdraw her application as her problem in her home country had been resolved that she was subsequently repatriated to Vietnam, I accordingly dismissed her application on 27 June 2024 (HCAL 861/2022, [2024] HKCFI 1686). Second Request To Make A Subsequent Claim However, on 15 October 2024 the Applicant again sneaked back into Hong Kong and was arrested by police on the same day, and after she was referred to the Immigration Department for investigation, she with legal representation from DLS again raised a request to make a subsequent claim on the basis that after returning to Vietnam in 2024, she borrowed another loan from a different money-lender to start a fish farm business, but after it was lost to a typhoon in September 2024, and when she was unable to repay her loan, her creditor sent men to threaten her, and to save her life she again departed Vietnam to come to Hong Kong to seek non-refoulement protection. By a Notice of Decision dated 14 May 2025 the Director again refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was the same or similar in nature 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 a 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 claims would give her subsequent claim any realistic prospect of success given the unchallenged finding in her previous claims of the availability of state protection and reasonable internal relocation to similarly negate any such risk of her subsequent claim upon her refoulement to Vietnam. On 22 May 2025 the Applicant again filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. 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, I therefore refuse to grant leave and accordingly dismiss her application. Dated the 31st day of July 2025 (Chung Lai Fan, Christine) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 31 July 2025 Vu Thi Thu Hang Applicant’s ref. no.: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 31 July 2025 Director of Immigration Putative Respondent’s ref. no.: L/M (32317) in ImmD RA 7/37/C (formerly L/M (25597) in ImmD RA 7/37/C; RBCZ/3001566/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1