Tran Quang Thanh v. Director of Immigration

HCAL 1941/2025

[2025] HKCFI 5199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 1941 OF 2025

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:

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:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 15 May 2025 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all the applicable grounds, while his seriously late appeal to the Torture Claims Appeal Board (“Board”) was refused in the absence of any good reason or justification for its extremely substantial delay of more than 5 years.   

2.The Applicant is a 54-year-old national of Vietnam who had in the past 30 years or more repeatedly entered Hong Kong illegally during which he was arrested by police for various offences and was invariably deported after discharge from prison, but on 6 April 2016 he again entered Hong Kong illegally and then raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor, a local loan shark by the name of Mr Son over his unpaid debts.  He was subsequently released on recognizance pending the determination of his claim.

Previous Non-Refoulement Claim          

3.By a Notice of Decision dated 31 July 2017 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 his 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”).

4.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 his creditor upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from his creditor, that there is no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between just the 2 of them 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 his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

5.The Applicant did not then bring any appeal to the Board against the Director’s decision, and thereafter failed to report on his recognizance to the Immigration Department and just disappeared for the next 3 years until 5 September 2020 when he was arrested by the police.

Request To Make Subsequent Claim

6.Whilst being detained pending prosecution, the Applicant on 23 October 2020 through his lawyer in writing to the Immigration Department requested to make a subsequent claim on the basis that he still feared of being harmed or killed by his creditor Mr Son over the same debts of his previous claim if refouled to Vietnam.     

7.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.”

8.Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer by producing a copy of the loan which he claimed to have been made with his creditor the said Mr Son in his previous claim.     

9.By a Notice of Decision dated 12 January 2021 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was exactly the same as that of his previous claim, and that he failed to provide any evidence in writing to satisfy an immigration officer that there has been any significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success in view of the unchallenged findings by the Director in his previous claim of the availability of both state protection and reasonable internal relocation alternatives to the Applicant upon his return to Vietnam to similarly negate whatever risk that may arise from his intended subsequent claim.

10.The Applicant’s application for leave to apply for judicial review of the Director’s decision was also refused by this Court on 30 September 2021 upon finding none of his proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Director or in the Director’s decision, and that there was no prospect of success in his intended application (HCAL 74/2021 [2021] HKCFI 2927).

11.The Applicant never brought any appeal against the Court’s decision, and instead on 2 November 2022 he lodged an appeal to the Board against the first decision of the Director of 31 July 2017 which rejected his non-refoulement claim, and as it was clearly outside the 14-day period to appeal under Section 37ZS(1) of the Immigration Ordinance, the Board in pursuance of Section 37ZT(2) of the Ordinance (as amended on 1 August 2021) proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s notice of appeal by taking account only of the stated reasons for his late filing and any evidence relied on in support of such reasons.

12.By a decision dated 22 September 2022 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it was more than 5 years out of time, that his stated reasons of having some medical issue at that time but unsupported by any documentary evidence, while his alleged impact by the Covid-19 pandemic was not acceptable or credible given that he was still able to launch all sorts of applications and proceedings during that period as noted above that the Board was not satisfied that he had exercised all due diligence to file his appeal within the required period or that he was unable to do so due to circumstances beyond his control.

13.The Applicant then sought leave from the Court to apply for judicial review of the Board’s decision, but his application was also refused by DHCJ To on 30 May 2024 upon finding his proposed grounds not reasonably arguable, that there was no error of law or procedural unfairness in his appeal to the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 1547/2022 [2024] HKCFI 1473).

14.Again the Applicant did not seek any appeal against the Court’s decision, and instead on 9 August 2024 he raised a non-refoulement claim again to the Immigration Department based on the same factual basis as in his previous claim of fear of being harmed or killed by his creditor Mr Son over the same debts as before, and accordingly the Director by a decision dated 13 August 2024 refused to allow the Applicant to raise the claim again as stipulated under Section 37ZO (1) of the Immigration Ordinance, and that his earlier request to make a subsequent claim on the same factual basis had already been refused and disposed of as noted above.

15.The Applicant then on 23 August 2024 tried to lodge an appeal to the Board against the Director’s decision, but was refused by the Board on 29 August 2024 for not being an appeal within the definitions stipulated under Section 37ZR of the Immigration Ordinance, while his subsequent leave application for judicial review of the Board’s decision was also refused by this Court on 30 October 2025 as not reasonably arguable (HCAL 1554/2024 [2025] HKCFI  5139).

Second Request to Make a Subsequent Claim

16.Meanwhile on 2 January 2025 the Applicant in writing to the Immigration Department requested to make yet another subsequent claim on the basis that he has been informed by his family in Vietnam that his creditor Mr Son is still looking for him everywhere that he still fears of being harmed or killed if refouled to his home country.

17.Again the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, and which he subsequently did via his lawyer from DLS with a statement in which he repeated his claim as before in his previous claim and with 2 supporting photographs of the damage said to have been done by his creditor to his home in Vietnam and an assault inflicted on a woman said to be the Applicant’s mother.

18.By a Notice of Decision dated 15 May 2025 the Director again refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that these changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given the unchallenged findings by the Director in his previous claim of the availability of both state protection and reasonable internal relocation alternatives to the Applicant upon his return to Vietnam to similarly negate whatever risk that may arise from his intended subsequent claim.

19.On 29 May 2025 the Applicant tried to lodge an appeal to the Board against this decision of the Director, and was refused by the Board on the basis that a refusal of a request to make a subsequent claim is not susceptible to an appeal to the Board under section 37ZR of the Immigration Ordinance.

20.On 29 August 2025 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of both the decisions of the Director and the Board, and after repeating his claim as before and a history of the many further applications and legal proceedings taken by him over the past 9 years in Hong Kong in his Form, the Applicant put forward the following grounds for his intended challenge:

(1)  That the Director was wrong in stating that the Applicant’s situation is largely the same as in his previous claim when his creditor Mr Son has clearly acted much more violently towards the Applicant’s family in Vietnam as evidenced by the photographs which clearly show a drastic and material change in his circumstances to justify allowing him to make a subsequent claim;

(2)  That the Director was Wednesbury unreasonable and/or failed to take into account relevant considerations in coming to the conclusion that the Applicant’s situation was similar as in the past;

(3)  That the Board erred in law in determining that it had no obligation to take action on the Applicant’s notice of appeal against the Director’s decision;

(4)  That the Board was Wednesbury unreasonable and/or violating procedural fairness and/or failing the Applicant’s legitimate expectation and/or ultra vires in refusing or neglecting to consider his notice of appeal at all;

(5)  That the Board failed to take into consideration relevant considerations all the contents of the Applicant’s subsequent application in particular the new circumstances stated and contained in his subsequent application.             

21.These are however all just vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to his case, or in what way did the Director or the Board err in their decisions or that they were unfair or unreasonable or ultra vires or procedural unfair.  As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge of either decisions.                         

22.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 Director’s decision or any failure to apply high standards of fairness in the consideration and assessment of this second request by the Applicant to make a subsequent claim which on the factual bases of even his own case is based on the same monetary dispute between him and his creditor Mr Son as in his previous claim which had already been properly and finally determined, and that any risk arising from his intended subsequent claim will be similarly negated by the Director’s correct and unchallenged findings of the availability of state protection and reasonable internal relocation alternatives to the Applicant upon his return to Vietnam, while the Board was also correct in finding that such a decision by the Director as regard subsequent claim is clearly not susceptible to appeal to the Board as stipulated under Section 37ZR of the Immigration Ordinance. As such, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of either decisions, I therefore refuse to grant leave and accordingly dismiss his application.

Restricted Proceedings Order

23.Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings as noted above, but that the Applicant is still trying to re-litigate his case repeatedly by making various applications over the past 9 years as well as a subsequent claim twice based on essentially the same facts and basis as before or invalid basis, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him.

24.Section 27 of the High Court Ordinance, Cap. 4 provides as follows:

“Restriction of vexatious legal proceedings

(1) The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that –

(a) no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b) any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2)  The Court of First Instance may not make an order under subsection (1) unless –

(a)  it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b)  it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3)  An order made under subsection (1) –

(a)  may be made on such terms and conditions as the Court of First Instance thinks just; and

(b)  may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

…”

25.Relevantly, Section 27A also provides:

“(1) Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 2791) shall not be given unless the Court of First Instance is satisfied that –

(a) the proceedings are not an abuse of the process of the court in question;　and

(b) there are reasonable grounds for the proceedings.

(2) No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”

26.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re‑open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section.  

27.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]).

28.In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] –[40]).        

29.In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claims without viable grounds amounts to an abuse of process, and that unless a RPO is made against him, to which he was unable to answer or raise any valid objection at the hearing, I am convinced that the Applicant will likely continue to do so and/or to make vexatious leave applications for judicial reviews, thereby wasting further precious time and resources of the Judiciary.

30.Accordingly, I make the following order against the Applicant save and except his right to appeal to the Court of Appeal within the rules against my refusal of his leave application under paragraph 22 above:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings relating to or touching upon or leading to any non-refoulement claim of the Applicant in the High Court unless with leave of a Judge of the Court of First Instance;

(2)  All applications for leave under paragraph (1) shall be made to 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 his 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 his 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 designated Judge 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 this Court or the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed;

(7)  Notice of each decision by 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 designated Judge, 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)  This order shall cease to have effect at the end of 5 years from the date of this Order; and

(11)  A copy of this Order shall be sent to the Registrar of the High Court.

Disposition 

31.The Applicant’s application for leave to apply for judicial review is dismissed.

32.A RPO in terms of paragraph 30 be made against the Applicant.  

Dated the 4^th day of November 2025

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