Vu Van Sang v. Director of Immigration

HCAL 439/2026

[2026] HKCFI 2802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 439 of 2026

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:    

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 23 February 2026 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 3 February 2026 (the “2026 Notice”) refusing his request to make a subsequent claim (the “Request”).   

2.The Applicant is a Vietnamese national, aged 40. He was arrested on 1 February 2017.  He claimed to have entered Hong Kong illegally from Mainland China on 25 January 2017.  On 10 February 2017, he lodged a claim for non-refoulement protection by written representation (the “previous claim”). 

3.His previous 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 20 December 2017 (the “2017 Notice”).  His appeal against the Director’s decisions in the 2017 Notice was dismissed by the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 4 July 2019 (the “Decision”).  His application for leave to apply for judicial review of the Board’s Decision in HCAL 1935 of 2019 was refused by this Court on 27 September 2024.  His application to appeal the decision of this Court out of time was dismissed by the Court of Appeal on 13 November 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 17 November 2025, just a month after the Court Appeal refused to grant him leave to appeal out of time, he applied to the Director for making a subsequent claim (the “Request”).  His Request was rejected by the Director’s 2026 Notice.  He now seeks leave to apply for judicial review of that 2026 Notice.

The law

4.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 Board’s and the Director’s finding in the previous claim

5.The Applicant’s personal background, the factual background leading to his previous claim, the basis of his previous claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims he will be killed harmed or killed by a moneylender and his underlings for being unable to pay his debt owing to the moneylender.

6.The Board found multiple and significant discrepancies between the Applicant’s evidence relating to the centrepiece of his claim before the Director (ie in his non-refoulemenc claim form and record of screening interview) and his testimony before the Board.  The Board found him incredible and his case implausible.  It rejected his evidence.  There is therefore no factual basis to support the Applicant’s claim.  Nevertheless, the Board took a step further.  It made some necessary findings of fact on the basis of the Applicant’s case as he asserted and the country of origin information (“COI”).  It found state protection and internal relocation are feasible options to mitigate or avoid the risk of harm.  Applying the law applicable to non-refoulement protection to all these findings of fact, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the USM.  The Decision and the findings of facts in the Decision are final and binding on the Applicant.

7.There is no need to quote the Director’s findings in the 2017 Notice as it was superseded by the Board’s Decision, save to mention that the decision in the 2017 Notice was upheld by the Board.

The immigration officer’s decision in the 2026 Notice

8.Upon receipt of the Applicant’s Request, the immigration officer referred the Request to the Duty Lawyer Service (the “DLS”) for their consideration whether to provide publicly‑funded legal assistance to the Applicant. The DLS declined to provide service.  On 10 December 2025, the immigration officer wrote to the Applicant to inform him of the DLS’s decision and asked him to provide further information and to confirm if the COI he had submitted contains his personal information on or before 24 December 2025.  He also advised the Applicant that if he did not hear further from the Applicant on or before the deadline, the Request will be assessed based on all information then available.  The Applicant did not respond.  Thus the immigration officer proceeded to assess the Applicant’s Request.

9.The Applicant claimed that the same moneylender and his underlings are still looking for him and threatening him.  He is stuck as he has no money to pay the moneylender.  He could not access state protection because the Vietnamese government apparatus is corrupt.  He could not relocate because there will be many difficulties and obstacles he will have to face in the new location.  He said that with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the moneylender and his underlings to find him out in the new location.  Therefore, his life will be seriously threatened.  He provided 11 links under a title “Some reference links about the current situation of creditors killing debtors in Vietnam” (“Document 1”) and two sets of two news article (“Document 2”) as evidence in support of his intended subsequent claim.

10.The immigration officer found that the source of harm in the Applicant’s intended subsequent claim is the same moneylender in his previous claim.  He considered the Applicant’s intended subsequent claim is basically a repetition or continuation of his previous claim which had been thoroughly considered and rejected.  He noted that the Request was raised in just about a month after the Applicant’s application for leave to appeal this Court’s decision relating to his previous claim.  The immigration officer considered Applicant’s conduct cast serious doubt on the credibility. 

11.Apart from showing fights between creditors and their debtors, Document 1 includes reports that the legal authorities in Vietnam took immediate action against perpetrators suggesting that the authorities would respond once they were informed of unlawful debt collection activities.  Document 1 supports the Board’s finding that state protection is available.  Document 2 contains articles about generic situation in Vietnam. The immigration officer found they do not support any real and personal risk of harm to the Applicant.  The Applicant had been specifically asked to confirm if the documents he had submitted contain his personal information.  He did not respond.

12.For completeness, the immigration officer also checked up-to-date COI, but found no indication of any significant change of country condition in Vietnam that would render state protection or internal relocation unavailable to the Applicant.

13.For all these reasons, he refused the Applicant’s Request.

The legal principles applicable to judicial review

14.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[2].

Grounds for judicial review

15.The Applicant advanced the following seven grounds of judicial review in his Form 86:

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

(2)   the Director’s decision is 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.

These grounds are very familiar to this Court as it has seen them many times in other leave applications.  It appears that they are copied from other applications which have no bearing to the facts to this case.  In general, they are lacking in particulars.

16.Ground (1) is not a proper ground but a prayer for the relief which the Applicant desires to obtain.  That is a question for this Court.

17.Grounds (2) and (3) are lacking in particulars as to the unreasonableness and unfairness complained of.  When asked for particulars, the Applicant could not give any.  He said he had ‘said all’ in his Request.  In fact, the weight to be given to any evidence or the COI is a finding of fact 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.  The Court shall revert to this in its over scrutiny of the 2026 Notice.

18.The Applicant was unable to identify the COI which he alleged in Ground (4) that the Board had given undue weight to.  All that he could say was that “I have mentioned them all”.   Insofar as he is referring to the COI which the Board had considered in the previous claim, the Board’s Decision is now final and not open to challenge.  Insofar as he is referring to the COI considered by the immigration officer in refusing his Request, the officer had not identified the COI.  Presumably he only checked the COI considered by the Board or his colleague in the previous claim for updates, but could not find any significant changes.  In any event, the weight to be given to any COI is also a finding of fact solely for the decision maker.  In the absence of particulars, the validity of this ground could not be assessed.

19.The Applicant was unable to provide particulars of the procedural impropriety and unfairness complained of and the questions asked by the immigration officer which he complained as unfair in Ground (5). However, the application and processing of the Request was just a paper exercise.  There was no interview or other occasions for the Applicant to appear before an immigration officer and be asked questions.  There is no substance in this ground.

20.The Applicant was unable to provide any particulars in respect of Grounds (6) and (7).  The validity of these grounds could not be assessed.  The Court could only bear these grounds in mind in its overall scrutiny of the immigration officer’s decision in the 2026 Notice.

21.None of the grounds advanced is 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 2026 Notice.

Overall scrutiny

22.Having considered the Request, the Director’s 2017 Notice and the Board’s Decision, and having rigorously examined the 2026 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 intended subsequent claim and 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. 

23.The immigration officer observed a very high standard of fairness.  He properly advised the Applicant 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 and the consequence of his failure to do so.  In particular, he sought confirmation from the Applicant whether the COI he submitted includes his personal information, which is a relevant consideration in assessing his Request.  The Applicant could have no valid complaint about procedural unfairness in the immigration officer’s processing of his Request.

24.The immigration officer’s finding in the 2026 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 2026 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 decision in the 2025 Notice.  The decision in 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

25.For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2026 Notice of Decision is refused.

Dated the 18^th day of May 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