NGUYEN THI THAN v. DIRECTOR OF IMMIGRATION

HCAL 2028/2025

[2025] HKCFI 5180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2028 OF 2025

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 9 September 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 8 August 2025 (“the Director’s 2025 Decision”), which refused the applicant’s request for making a subsequent claim for non-refoulement protection (“the Request”). The Request was made by way of a letter dated 24 April 2025.

Procedural history of the applicant’s previous non-refoulement claim

2.  The applicant is a female Vietnamese who entered Hong Kong illegally and was arrested by the Hong Kong police on 29 November 2015. She made her first claim for non-refoulement protection on 2 December 2015.

3.  The Director rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”) on 22 September 2017 (“the Director’s 2017 Decision”). The applicant filed an appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s 2017 Decision on 3 October 2017. The Board refused her appeal/petition and confirmed the Director’s 2017 Decision on 23 December 2019 (“the Board’s Decision”).

4.  The applicant applied for leave to apply for judicial review in respect of the Board’s Decision on 13 January 2020 (“the Previous Leave Application”). This court dismissed the Previous Leave Application on 10 April 2025[1].

The applicant’s subsequent claim

5.  On 24 April 2025, merely two weeks after the Previous Leave Application was dismissed, the applicant made the Request and continued to claim that she would be harmed or killed by the same creditor if refouled to Vietnam. She also requested a duty lawyer to assist her in the Request.

6.  Upon receiving the Request, the Director informed the applicant of the requirement of making a subsequent claim by way of a letter dated 7 May 2025. On 12 May 2025, the Director referred the applicant’s case to the Duty Lawyer Service (“DLS”) for their consideration of providing publicly-funded legal assistance to her.

7.  On 29 May 2025, DLS informed the Director that they would not provide legal representation to the applicant in relation to the Request. By way of a letter dated 30 May 2025, the Director informed the applicant about DLS’s decision and that she might instruct private lawyer(s) at her own expenses if she saw fit to do so.

8.  In the said letter of 30 May 2025, the Director also reminded the applicant of the requirement of making a subsequent claim and she was requested to provide further evidence (if any) on or before 13 June 2025. The applicant was informed that if the evidence/supporting document(s) were not readily available, she should fully specify in writing (i) the nature of the evidence/supporting documents she intended to submit in support of the Request and (ii) the relevancy to the Request. The Director clearly stated that if he did not hear from the applicant on or before the mentioned deadline, the Request would be assessed based on all the available information. However, the applicant did not respond to the Director’s said letter.

9.  After consideration of the applicant’s previous non-refoulement claim, the Request, the documents submitted by the applicant in support of the Request and updated country of origin information (“COI”) for Vietnam, the Director refused the Request by way of the Director’s 2025 Decision.

The applicant’s case

10.  In her first claim for non-refoulement protection, the applicant claimed that she would be harmed or even killed by her creditor if refouled to Vietnam. In the Request, the applicant claimed that the creditor and the creditor’s followers were still finding and threatening her in collecting the debt, they were angry and seemed to have no humanity and they disregarded the law.

11.  Thus, the applicant’s claim in the Request was largely based on the previous claim, and the Director considered it as a reiteration or continuation of her previous claim, which could not amount to a significant change of circumstances.

Oral hearing

12.  This court fixed an oral hearing of the Leave Application on 21 October 2025 and the applicant was present at the hearing.

13.  At the hearing, the applicant confirmed with this court that her present case was the same as her previous case and she made the present case because she wanted to stay here. However, the applicant claimed that she was not aware that she was making a repeated claim. According to the applicant, the Request was made by a middle person on her behalf and she was not aware that she could appeal against this court’s previous decision instead. The applicant said that she did not understand the legal procedures and if this court would not allow her to continue with her claim, then she would not make any further application. The applicant also confirmed that she had nothing to say in respect of the Leave Application.

Grounds for judicial review

14.  In Form 86, the applicant annexed a document with the title “Grounds on which relief is sought”, in which the applicant asserted several grounds for the Leave Application. The grounds are reproduced as follows:-

“1. I should be given another chance to make a subsequent claim.

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 the 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.”

15.  The said document with contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Director’s and/or the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations.

Discussion

16.  As the applicant was relying on a middle person to make the Request and unaware that she was making a repeated claim and she confirmed that she had nothing to say in respect of the Leave Application, it is clear that the aforesaid grounds are not her genuine grounds for the Leave Application. It is also clear that she is no longer relying on those grounds in the Leave Application.

17.  Even if the applicant wants to rely on those grounds, they were very general and without any particulars related to the applicant’s own case. They only contained “keys words” such as the Director’s Decision was wrong, unreasonable and irrational, the Director was procedurally unfair, the Director had placed too much reliance on COI but failed to take her personal background and experience into account, etc. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 2 either.

18.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

19.  Thus, none of the grounds that were contained in the said document could establish any valid ground to challenge the Director’s 2025 Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

20.  Apart from the lack of particulars, those grounds are simply irrelevant and inapplicable to the Director’s 2025 Decision in refusing her request to make a subsequent claim.

21.  The making of a subsequent claim is stipulated by Section 37ZO of the Immigration Ordinance, Cap 115, which reads as follows:-

“Limitation on subsequent claim

(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.”

22.  It is clear that the Director had fully complied with the above provisions when considering the Request.

23.  The Director found that the basis of the subsequent claim was the same as that of the applicant’s previous claim. The Director also found that the applicant failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there had been any significant change of circumstances or 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.

24.  The Director had duly considered the applicant’s supporting documents in relation to the Request, including 13 links to newspaper articles that depicted separate incidents in different parts in Vietnam, and other news articles about Vietnam. However, the Director found that they did not support any real and personal risk of harm to the applicant in the applicant’s particular case. The Director also considered updated COI and found that there was no change of situation in Vietnam that would lead to unavailability of state protection or affect the viability of internal relocation for the applicant.

25.  These were findings of facts within the exclusive ambit of the Director, and this court in a judicial review will not interfere with them save when such findings involved errors of law, procedural unfairness or irrationality.

26.  Having considered the applicant’s Request, and having rigorously examined the Director’s 2025 Decision with anxious scrutiny, this court is satisfied that the Director had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO, correctly identified the issues, and analyzed the evidence with due care. The Director observed a very high standard of fairness. This court finds no errors of law in the Director’s 2025 Decision or procedural unfairness in the making of that decision. The Director’s 2025 Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational.

27.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Restricted Proceedings Order

28.  It seems that the applicant might have abused the judicial process by making the Leave Application, as the applicant’s non-refoulement claim had already been determined by the Director’s 2017 Decision, the Board’s Decision and this court’s decision in the Previous Leave Application.

29.  The court has inherent jurisdiction to prevent an applicant from abusing its process by making an extended order against such applicant (see Ng Yat Chi v Max Share Ltd and Another [2005] 1 HKLRD 473).

30.  Restricted Proceedings Order (“RPO”) is an appropriate measure to prevent abuses of the court’s process by non-refoulement claimants (see Wahyuni v Director of Immigration [2021] HKCFI 1991).

31.  However, this court has to exercise its discretion by reference to the circumstances of the case and the principle of proportionality. A RPO is in substance an injunction and this court has the power to grant an injunction to safeguard the proper administration of justice. At the same time, the exercise of such power has to be balanced against a litigant’s right of access to the court (see The Secretary for Justice v Yuen Oi Yee Lisa [2006] 1 HKLRD 679).

32.  Generally, such order is called for when a vexatious litigant has already involved the appellate process unsuccessfully but persisted by re-litigating his wholly unmeritorious case all over again (see Siti Khotimah v Director of Immigration [2022] HKCA 327 and Indah v Director of Immigration [2022] HKCA 564).

33.  This court has called upon the applicant to show cause why a RPO should not be made against her. This court accepts the applicant’s explanation that she was merely relying on a middle person to make the Request and she was not aware that she could appeal against this court’s previous decision instead. Thus, this court does not find the applicant abusing the judicial process at this stage. Moreover, as the applicant has not gone through any appellate proceedings in respect of the Previous Leave Application, this court does not think that it is right to restrict the applicant from exercising any right of appeal at this stage.

34.  Thus, this court is not prepared to grant a RPO against the applicant at this stage. Nevertheless, the applicant should now be aware that she should not make any repeated claim based on the same circumstances again. This court will not hesitate to grant a RPO against her should she make such repeated subsequent claim again.

Conclusion

35.  For reasons aforesaid, the Leave Application is dismissed and no RPO is made.

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