NGUYEN VAN THANG v. DIRECTOR OF IMMIGRATION

Application for Leave to Apply for Judicial Review

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

Following:

1.   On the Court's own motion, the date of the decision in respect of which relief is sought as stated in the Form 86 be amended to '6 November 2025'; and

2.   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 18 December 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 6 December 2025 (the “2025 Notice”) refusing his request to make a subsequent claim (the “Request”).   In his supporting affirmation filed with the Form 86, the Applicant annexed a copy of the Director's Notice of Decision dated 6 November 2025 as the decision in respect of which relief is sought.  It is therefore obvious that the date of the decision in respect of which relief is sought is 6 November 2025 and the date of 6 December 2025 as stated in the Form 86 is a typographical error.  Hence, on the Court's own motion, the Form 86 is amended to reflect the Applicant's true intention.

2.  The Applicant is a Vietnamese, aged 29.  On 3 October 2020, he lodged a claim for non-refoulement protection by written representation (the “previous claim”).  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s decision in his Notice of Decision dated 27 September 2021 (the “2021 Notice”).  His appeal against the Director’s decisions in the 2021 Notice was dismissed by the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 3 January 2023 (the “Decision”).  His application for leave to apply for judicial review of the Board’s Decision in HCAL 137 of 2023 was refused by this Court on 17 May 2023. His appeal against this Court’s decision was dismissed by the Court of Appeal on 14 February 2025.  His application for leave to appeal to the Court of Final Appeal was dismissed by the Appeal Committee of the Court of Final Appeal on 12 August 2025.  His previous claim has run its full course and the Decision of the Board is now final. Yet, he did not return to Vietnam.  On 9 September 2025, less than a month after the Appeal Committee dismissed his appeal to the Court of Final Appeal, he applied to the Director for making a subsequent claim (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

3.  Under the USM, 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.

The previous claim

4.  The Applicant’s previous claim was that he had borrowed 500 million Vietnamese Dongs from a moneylender to finance his business.  He was unable to repay and was threatened with death.  Hence, he fled to Hong Kong.  The Board found significant contradictions between his evidence in his non-refoulement claim form and his testimony before the Board which led the Board to the conclusion that the centrepiece of his claim is largely concocted and false.  Hence, the Board dismissed his appeal.

The procedural history

5.  Upon receipt of the Request, the immigration officer sent him a letter on 18 May 2021 informing the Applicant of the requirement under section 37ZO and requesting more information from the Applicant in support of his Request.  He also referred the Applicant’s claim to the Duty Lawyer Service (the “DLS”), though the DLS service declined to represent him.  On 9 October 2025, the immigration officer informed the Applicant of the decision of the DLS and advised him that he may seek private legal representation if he saw fit to and reminded him to submit all available evidence and supporting documents by 23 October 2025 and advised him the procedure for applying for extension of time to comply if the documents were not readily available.  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 the assessment.

The intended subsequent claim and the immigration officer’s decision in the 2025 Notice

6.  In his Request, the Applicant basically repeated his account in the previous claim, which had been rejected by immigration officer who considered his previous case (the “previous case officer”) and the Board. He also claimed that the moneylender and his underlings are still looking for him and threatening him.  He said he had no money to repay and the Vietnamese police are corrupt and would not help him.  He also claimed that he could not relocate within Vietnam because he could not face difficulties and obstacles in the new location and the moneylender could locate him through the nationwide social network of gangsters and clandestine connections with corrupt elements in the government and police.  He produced some articles and links reporting violence engaged by moneylenders in their debt collection activities.

7.  As the Applicant’s claimed source of fear is the same moneylender in his previous claim, the immigration officer found his intended subsequent is merely a continuation of his previous claim and does not constitute a significant change of circumstances.  The Applicant’s claim about inaccessibility to state protection had been rejected by the previous case officer on the basis of objective country of origin information (“COI”) and found that the state of Vietnam was able and willing to protect the rights of its citizens.  The immigration officer also noted the Applicant’s own admission in his previous claim that he did not know whether the moneylender had any connection with the government or other authorities in Vietnam. The immigration officer therefore found the Applicant’s alleged clandestine connections between the moneylender and corrupt elements in the government and police were bare assertions or speculation not supported by any evidence or new facts.  He also found on the basis of updated COI that state protection is available.

8.  The immigration officer examined the documents and links provided by the Applicant. He accepted that while the documents and links reveal incidents about creditors harming or killing debtors in Vietnam, they also reflect that the police and authorities were willing and capable to discharge their duties and respond quickly once they received reports of illegal debt collection activities.  He is therefore satisfied that state protection is available. 

9.  On the fact, the immigration officer found the Applicant had not provided any sufficient evidence in writing to satisfy him that there has been a significant change of circumstances since the previous claim was finally determined and 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.  Hence, he issued the 2025 Notice on behalf of the Director to refuse his Request.

The legal principles applicable to judicial review

10.  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[1].

Grounds for judicial review

11.  The Applicant advanced the following six grounds for judicial review in his Form 86:

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

(2)   the Director’s decision was 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 respond to questions that 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.

12.  The Applicant’s grounds are generally lacking in particulars.  His Ground (1) is not a proper ground but the relief he desired to obtain.  It is the ultimate issue which this Court has to determine in this leave application.

13.  Grounds (2) and (3) are lacking in particulars as to the unreasonableness and unfairness complained of.  When asked for particulars, the Applicant said he had ‘no comment’.  The weight to be given to any evidence or the COI is a fact finding 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.

14.  The Applicant was unable to identify the COI which he accused the Board of having given undue weight to under Ground (4).  As for the personal background which he complained the Board of failing to take into account, he was referring to his evidence that the moneylender and his men had been to his mother’s home to look for him.  The immigration officer did not reject his evidence that his moneylender had been to his mother’s home to look for him.  He seemingly assumed it was true but found such harm or risk of harm had been considered in the previous claim and could not constitute significant change of circumstance which would entitle him to make a subsequent claim.

15.  The Applicant was unable to provide the particulars of the procedural impropriety and unfairness complained of and the questions asked by the immigration officer which he complained as unfair under Ground (5).  Indeed, it was his duty to answer the immigration officer’s question in his and the immigration officer’s duty of join endeavour to establish his claim.

16.  As for the argument which he complained the Board of failing to take into account or give weight to under Ground (6), he was referring to the danger to his life if refouled and his need to stay in Hong Kong.  In essence, he was challenging the finding of fact by the previous case officer and the Board that he had failed to prove the centerpiece of his previous claim.  Those findings are final with the Court of Appeal’s dismissal of his application for leave to appeal to the Court of Final Appeal.

17.  None of the grounds he advanced are 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 2021 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 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.  The immigration officer properly advised him of the requirements in making a subsequent claim and referred his claim to the DLS, though the DLS declined to act for him.  He reminded the Applicant of the deadline to provide further information, the consequence of his failure to do so 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.

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 2025 Notice.  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.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2025 Notice of Decision 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