NGUYEN TIEN THUAN v. DIRECTOR OF IMMIGRATION

HCAL 530/2026

[2026] HKCFI 3215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 530 of 2026

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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 9 March 2026 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 25 November 2025 (the “2025 Notice”) refusing his request to make a subsequent claim (the “Request”).   

2.  The Applicant had requested an oral hearing.  A hearing on 13 April 2026 was scheduled and notice of hearing was sent to him by post to his address as stated in his Form 86.  The Notice has not been returned through the post.  The Applicant had never informed the court of any change of address.  There is nothing to suggest that he had not received the letter or had moved.  On the afternoon of 10 April 2026, a court staff attempted to contact him by telephone to remind him of the hearing. The call to one of the two telephone numbers he provided was not answered while the call to the other telephone number was answered and acknowledged.  However, the Applicant did not appear at the hearing.  At the time of the hearing, a court staff attempted to call the Applicant to check if he was coming to the hearing, but the person who answered the call said he was not the Applicant.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that he had notice of the hearing.  Having also considered the nature of the application and issues raised, the Decision, 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.

The delay in taking out the leave application

3.  The leave application was filed three months and fourteen days after the date of the decision sought to be reviewed.  Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application shall 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.  The leave application was made fourteen days out of time.  The Applicant has to show good reason for extending the time to file the leave application.

4.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ.  

5.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided no explanation for the late application. He did not attend the hearing and forwent his last opportunity to explain the delay.  The leave application was not out of time for fourteen days.  It was not promptly made as required by Order 53, rule 4(1).  It was made fourteen days after the maximum period which the court would usually indulge.  In the absence of reasonable explanation for the delay, the principle in Po Fun Chan v Winnie Cheung is applicable.  However, out of abundance of caution, the Court assessed the merits of the leave application.  Hereunder is a summary of its consideration. 

Background

6.  The Applicant had entered Hong Kong illegally in July 1988 and was repatriated back to Vietnam in September 1999.  He was again arrested on 12 April 2011 for breach of a deportation order and sentenced.  He was then repatriated back to Vietnam on 11 April 2012.  He sneaked into Hong Kong for the third time and surrendered to the Immigration Department on 20 January 2016.  He made a claim for non-refoulement protection by written signification on 23 March, 2 and 4 April 2017 (the previous claim). 

7.  The Applicant’s previous claim was rejected by the Director (the “2017 Notice”).  His appeal against the 2017 Notice was dismissed by the Board (the “Board’s Decision”).  He applied for leave to apply judicial review of the Board’s Decision.  His application was refused. His previous claim had run its full course with the Court of Final Appeal dismissing his Notice of Motion for leave to appeal to the Court of Final Appeal on 2 June 2025.  Three weeks later, he made the Request to the Director to file a subsequent claim.  His Request was refused by the Director’s 2025 Notice.  He now applies for leave to review that 2025 Notice.

8.  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.

9.  In his previous claim, he claimed he will be harmed or killed by a moneylender for being unable to repay a loan he had borrowed from that moneylender and will be persecuted by the Vietnamese government for suspected espionage and for contesting the government’s land resumption.  He said he was serving in the Vietnamese army in 1987 and was injured while dismantling a land mine.  He was suspected of spying for China and served one year sentence.  He had a land resumption dispute with the Vietnamese government in 2012, but eventually he accepted the compensation.  He also claimed he had borrowed 300 million Vietnamese Dong from a moneylender to start his fish farming business.  His fish died because of water pollution.  He could not repay the moneylender.  He was assaulted and threatened with death by the moneylender.  In dismissing his appeal, the Board held that his risk of harm is low, that he could access state protection and could also mitigate the risk by internal relocation.

10.  In his intended subsequent claim, he claimed that his moneylender is still pursuing him for repayment.  He submitted some newspaper cutting and links showing creditors killing debtors in Vietnam to support of his fear of harm.  He admitted he had not been persecuted or harassed by the government for being suspected of espionage and for contesting the land resumption.  The immigration officer found the Applicant’s claimed fear of harm is from the same moneylender and for the same monetary dispute.  He considered the Applicant’s intended subsequent claim is a repetition of his previous claim.  He was not satisfied that the Applicant had established significant change in circumstance which when taken together with the materials previously submitted in the previous claim would give his intended subsequent claim realistic prospect of success.  Hence, he refused the Applicant’s Request.

Grounds of application

11.  The Applicant’s grounds of application as set out in his Form 86 are:

(1)   the Applicant should be given another chance to make a subsequent claim;

(2)   the Director’s decision is not reasonable and fair as required by the Wednesbury test;

(3)   the Director failed to give proper importance or weightage to the presence of state acquiescence in his case leading to an unfair outcome;

(4)   the Director acted unreasonably and procedurally unfairly by placing too much reliance on country of origin information (the “COI”) but failed to take his personal background and experience and COI favourable to the Applicant into account;

(5)   the Director acted procedurally improperly and unfairly when assessing whether to accept his explanation and unreasonably required him to answer questions which he could not respond;

(6)   the Director failed to take such argument into account or give enough weight to such argument before reaching the decision; his attitude was unfair; and

(7)   the Director’s decision was wrong and irrational.

These grounds are very familiar to this Court as it has seen them many times in other leave applications.  It appears that they are copied from other applications which have no bearing to the facts to this case.  In general, they are lacking in particulars.

12.  Ground (1) is not a proper ground of application but a prayer for the relief which the Applicant desires to obtain.  That is a question for this Court.

13.  Grounds (2) and (3) are lacking in particulars of the unreasonableness and unfairness complained of.  In fact, the weight to be given to any evidence or the COI is a finding of fact solely for the decision maker, ie the immigration officer exercising the authority of the Director, which this Court may not intervene save for errors of law, procedural unfairness and irrationality in the decision.  The Court shall revert to this in its over scrutiny of the 2025 Notice.

14.  The Applicant did not identify the COI which he alleged in Ground (4) that the Board had given undue weight to.  

15.  The Applicant did not provide particulars of the procedural impropriety and unfairness complained of and the questions asked by the immigration officer which he complained as unfair in Ground (5).  Furthermore, the application and processing of the Request was just a paper exercise.  There was no interview or other occasions for the Applicant to appear before an immigration officer and be asked questions.  There is no substance in this ground.

16.  The Applicant did not provide any particulars in respect of Grounds (6) and (7). The validity of these grounds could not be assessed.  The Court could only bear these grounds in mind in its overall scrutiny of the immigration officer’s decision in the 2025 Notice.

17.  None of the grounds advanced is substantiated. In the absence of any particularized grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in its overall scrutiny of the 2025 Notice.

Overall scrutiny

18.  Having considered the Request, the Director’s 2017 Notice and the Board’s Decision, 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 relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence.  In essence, the immigration officer found there was no significant change in circumstances since the previous claim was finally determined.  This is essentially a finding of fact.  On the intended subsequent claim and evidence as presented by the Applicant, it was open to the immigration officer to come to that conclusion.  It must then necessarily follow that there was nothing in his Request which would give the intended subsequent claim a realistic prospect of success.  This is a finding of fact solely for the decision maker, which the Court in an application for judicial review may not interfere. 

19.  The immigration officer observed a very high standard of fairness.  He properly advised the Applicant of the requirements in making a subsequent claim.  He referred the Applicant’s claim to the DLS and the DLS represented him and made submissions on his behalf.  The Applicant could have no valid complaint about procedural unfairness in the immigration officer’s processing of his Request.

20.  The immigration officer’s finding in the 2025 Notice is essentially a mixed finding of fact and of the law.  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 a matter for the immigration officer which the Court in a judicial review may not interfere, save for errors of law, procedural unfairness and irrationality in the decision 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

21.  The Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2025 Notice was not promptly made and he has not tendered any explanation for the delay.  The Court could not find any good reason to extend the time for filing his leave application.  The Applicant has failed to prove significant change in circumstance which when taken together with the materials previously submitted in the previous claim would give his intended subsequent claim realistic prospect of success.  For the above reasons, his leave application is refused.

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