Nguyen Van Trong v. Director of Immigration

HCAL 558/2022

[2026] HKCFI 1749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 558 of 2022

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 To:

1.   The Form 86 be amended on the Court’s own motion;

2.   Extension of time to apply for leave for Judicial Review be refused; and

3.   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 30 June 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 3 January 2022.  On the documents available and the Court’s enquiries, the Court found the Board had not made any decision in respect of the Applicant dated 3 January 2022, but the Director of Immigration (the “Director”) had issued a Notice of Decision relating to him bearing that date (the “2022 Notice”) refusing his application to make a subsequent claim.  At the hearing, the Applicant confirmed that it was his intention to seek judicial review in respect of the Director’s decision in the 2022 Notice. Hence, on its own motion, the Court amended the Applicant’s Form 86 making the Director the proposed respondent and his 2022 Notice the decision in respect of which relief is sought.

The law and explanation for the late application

2.The leave application was filed five months and twenty-seven days after the date of the 2022 Notice sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application had not been lodged promptly, being made almost three months after the date of the 2022 Notice.  Extension of time to file the leave application is required.

3.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.  

4.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 neither.  At the hearing, after the relevant legal provisions mentioned in the above paragraphs had been explained to him, the Applicant gave various explanations for late receipt of the 2022 Notice such as that he had no fixed abode as he was not entitled to allowance from the International Social Service and that he was in prison custody.  After it was shown to him that the 2022 Notice had been sent to him care of Tong Fuk Correctional Institution, he admitted that he had received the 2022 Notice at around the date as stated in the notice.  The leave application was not promptly made.

5.Then, he advanced another explanation.  He said he could not read Chinese and had no language assistance in prison.  He did not or could not explain why he did not seek the assistance of the welfare officer in the institution.  He said the lawyer told him that he could take the matter forward after his release from prison.  When asked the particulars of the lawyer, he said there were two people who came to Tong Fuk Correctional Institution to give him the notice, but they could not explain the notice to him as they could not arrange for the services of an interpreter on both occasions.  He did not know who those people were.  Then, he or they enlisted the services of Vietnamese inmate to help him.  It was the inmate who advised him to take the matter forward after his discharge from prison.  There was no indication in the 2022 Notice that he was represented by the Duty Lawyer Service or by a private lawyer.  It is unlikely that a lawyer or a para-legal assistant would have come to deliver the notice to him.  If they were lawyer or para-legal, it is unlikely that they would have so advised him.  In view of the many changes in his evidence and the ambiguous nature of his evidence, the Court does not accept his explanation.  There is no dispute that he had received the notice for almost six months before he filed the Form 86.  He was in prison for five of those six months.  He had nothing else to engage him during that period of time.  He had access to the welfare officer for assistance.  The Court found he had no reasonable explanation for the delay.  The delay falls within the ‘many months’ category for which leave may be refused “however strong the complaint might otherwise be”, without considering merits of the substantive application.  However, it is amply clear that there were no merits in the intended judicial review.

Merits of the intended judicial review

6.The Applicant’s previous claim was that he will be harmed or killed if returned to Vietnam for being unable to repay a debt owing to his moneylender.  The immigration officer found in the previous claim that the ill-treatment the Applicant received did not attain the minimum level of severity; there was no evidence that he would be subject to genuine risk of harm if returned to Vietnam; and that state protection was available and internal relocation feasible to mitigate or avoid the risk of harm.  The Board also made similar finding of fact and found as a matter of law that he was not entitled to protection under any of the four applicable grounds under the Unified Screening Mechanism.

7.The Applicant subsequent claim is that his life would be at risk returning to Vietnam because he could not repay his debt owing to the moneylender.  The immigration officer found he was essentially repeating his previous claim and that there was no substantial change in circumstances after his previous claim was determined.  Hence the immigration officer refused his request.  

8.The Applicant did not advance any grounds of review.  After the legal principles applicable to judicial review had been explained to him, he confirmed he had no complaint about errors of law, procedural unfairness and irrationality in the decision in the 2022 Notice.  In the absence of any particularized grounds of application, the court in an application for judicial review could only focus on errors of law, procedural unfairness or irrationality in the decision. 

Overall scrutiny

9.Having considered the Request, the Director’s 2017 Notice and having rigorously examined the 2022 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 analyzed the evidence.  The Court could not detect any error of law in the 2022 Notice.

10.The immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting his Request and advised him of his right to legal representation and the availability of publicly funded legal assistance.  The immigration officer acted fairly.  He assessed the Applicant’s Request on the basis of the information he asserted.  He took into consideration the finding of the previous case officer in the 2017 Notice, in particular availability of state protection and internal relocation, which he was required to under section 37ZO of the Immigration Ordinance. On the basis of these evidence, he found there was no significant change in circumstance which when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  On any objective view of the evidence and information provided by the Applicant, it was open to the immigration officer to reach that conclusion.  These are finding of facts which are exclusively within the province of the Director to make and which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  This Court could detect no error of law 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

11.For the above reasons, on its own motion the Court amended the Applicant’s leave application, but the leave application as amended is refused.

Dated the 27^th day of March 2026

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