CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 323 of 2026
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BETWEEN
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Nguyen Van Thien |
Applicant |
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Director of Immigration |
Putative |
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Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
1. Leave to apply for Judicial Review be refused; and
2. A Restricted Proceedings Order (RPO) be made against the applicant.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 18 July 2023 (“the Director’s Decision”) refusing his subsequent claim on the applicable risks[1], which had been determined in his previous application under HCAL 1389 of 2021 (“the previous claim”).
2. The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.
3. The applicant was absent at the hearing on 18 March 2026. He is deemed to waive his right to be heard. I shall deal with his application and the issue of RPO on the papers.
4. The Director’s Decision is in Chinese. This Form CALL-1 is in English because the applicant filed his affirmation in support of this application in English.
The procedural history
5. The applicant is a national of Vietnam. He is an illegal immigrant. He lodged a non-refoulement claim with the Director for the reason that, if refouled, he will be harmed or killed by the family of a traffic accident victim where he was driving a taxi and had knocked down a motor-cyclist, whom he believed to be dead later.
6. The Director dismissed his claim for the reason that it was not substantiated. He appealed to Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board found that his claim was unfounded and dismissed his appeal (“the Board’s Decision”).
7. He applied to the Court of First Instance for leave to apply for judicial review of the Board’s Decision.
8. On 2 November 2023, the Court of First Instance refused his application.
9. He appealed to the Court of Appeal. But he failed to comply with the directions given by the Registrar of Civil Appeals to lodge 2 sets of appeal bundle. The Court of Appeal made an “unless order”, which he failed to comply with. The Court of Appeal dismissed his appeal on 29 December 2023.
10. He applied to the Court of Appeal for relief from sanction for his failure to comply with unless order. By a judgment dated 5 September 2024, the Court of Appeal dismissed his application.
11. He issued a Notice of Motion for leave to appeal to the Court of Final Appeal. The Court of Appeal dismissed his Notice of Motion.
12. By letter dated 15 May 2023, the applicant applied to the Director for making a subsequent claim for non-refoulement protection. By the Director’s Decision, the Director refused his application.
The subsequent claim application
13. Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.
14. Upon the immigration officer’s advice, he had submitted additional materials in support of his application.
15. The immigration officer considered his evidence and found that the applicant relied on the similar reasons in his previous claim. Besides, the immigration officer also found that state protection would be available to him and internal relocation was viable.
16. For those reasons, the immigration officer did not accept that the applicant’s subsequent claim application satisfied the conditions under section 37ZO of the Ordinance and refused his application.
Application for leave to apply for judicial review of the Director’s Decision
17. The applicant filed Form 86 on 4 February 2026 for judicial review of the Director’s Decision.
18. The applicant has raised the grounds below in support of his application.
(1) The Director’s Decision is unreasonable and unfair. He had not considered his right to life.
(2) The Director had not considered the issue of state acquiescence.
(3) The Director relied too much on the country of origin information without considering his personal background and experience.
(4) The Director was unfair to demand him to answer questions that he was not in a position to answer.
(5) The Director failed to give enough weight to his evidence. He failed to take into account the corruption and incompetency of the administration in Vietnam. He failed to attain high standards of fairness.
Discussion
19. The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact-finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
20. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
21. The grounds under paragraph 17 are bare assertions or opinions without any evidence in support. The Court of Appeal had held that they are not valid to challenge the Director’s Decision[2].
22. The applicant fails to show that he has any realistic chance of success in his intended judicial review of the Director’s Decision.
23. I dismiss his application for leave to apply for judicial review of the Director’s Decision.
The RPO
24. Because of the applicant’s attempt to abuse the process, the Court has to protect its process to be abused again. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.
25. RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Direcctor of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021, § 9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, § 25.
26. For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against him. However, he was absent at the hearing. He is deemed to waive his right to be heard.
27. I am therefore satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below:
(1) The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court and any appeal, including this Order, without leave of the Court of First Instance.
(2) All applications for leave under paragraph (1) shall be made to the Deputy High Court Judge K.W. Lung or in his absence, the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List.
(3) At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of her intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with the said application for leave.
(4) Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the Court written representations regarding the same.
(5) All applications made pursuant to this order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the Court should otherwise direct.
(6) If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the Court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the Court for a decision as to whether they should be permitted to continue or should be dismissed.
(7) Notice of each decision by this Court or the designated Judge made pursuant to this order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings.
(8) Whether or not any fresh proceedings are brought to the notice of the Court, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.
(9) No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months.
(10) No appeal shall lie from a decision of the Judge granting or refusing leave within this Order unless leave to appeal has been granted by the Court.
(11) This order shall cease to have effect at the end of 5 years from the date of this order.
(12) A copy of this Order shall be sent to the Registrar of the High Court.
DISPOSITION
28. The applicant’s application is dismissed.
29. RPO in terms of paragraph 27 be made against the applicant.
Dated the 15th day of April 2026
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(Allen LEE)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 15/4/2026
Nguyen Van Thien
Applicant’s ref. no:
Nil.
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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 15/4/2026
Director of Immigration
Putative Interested Party’s ref. no.:
L/M (27597) in ImmD RA 7/37/C
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The applicable risks are:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
[2] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … 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: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”