Nguyen Thi Phuong Anh v. Director of Immigration

HCAL 2881/2025

[2026] HKCFI 4918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2881 OF 2025

BETWEEN

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

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 11 June 2025 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.

2.The Applicant is a 30-year-old national of Vietnam who entered Hong Kong illegally on 16 August 2015 and surrendered to the Immigration Department on the following day when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her debts.

3.While released on recognizance pending the determination of her claim, the Applicant was arrested in November 2017 for undertaking unauthorized employment, and was subsequently convicted and sentenced to prison for 15 months.

Previous Non-Refoulement Claim

4.By a Notice of Decision dated 6 April 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 her 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”).

5.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 her creditor and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor 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 94 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 her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

6.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 30 August 2018[1] upon finding no merits in her claim or appeal, and that it also confirmed the Director’s decision.

7.Accordingly, and upon the final determination of her claim under the USM, the Applicant was on 11 September 2018 repatriated to Vietnam.

Request To Make Subsequent Claim

8.Some 6 years later on 21 October 2024, the Applicant sneaked back into Hong Kong, and on 29 October 2024 she surrendered to the Immigration Department and requested to make a subsequent claim on the basis that she still fears of being harmed or killed by her creditor over her still outstanding debts if refouled to Vietnam.

9.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.”

10.Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, but despite repeated reminders for her to do so, the Applicant never submitted any further evidence or information in support of her request to make a subsequent claim.

11.By a Notice of Decision dated 11 June 2025, the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of her previous claim, and that she failed to provide any evidence in writing to satisfy an immigration officer that there has been any significant change of circumstances since her previous claim was determined, or that 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 given the unchallenged findings by both the Director and the Board of the availability of state protection and reasonable internal relocation alternatives to the Applicant upon her return to Vietnam to negate whatever risk that may arise from her intended subsequent claim.

12.On 29 December 2025, the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Director reached the decision wrongly in assessing her non-refoulement claim in that the decision as not reasonable or fair as required by the Wednesbury test in failing to recognizing that her right to life must be protected by criminal law from the killings that she may face if deported back to her home country;

(2)  That the Director failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claims;

(3)  That the Director acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the personal background and experience of the Applicant into account in assessing her claim;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in her home country would not be able to protect but failed to consider or give weight to such evidence and instead ruled otherwise against the Applicant’s claim;

(5)  That the Director was procedurally unfair or improper when assessing whether or not to accept explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer her response;

(6)  That the Director had clearly shown unfair attitude against the Applicant which in itself is enough to render her decision void;

(7)  That the Director failed to attain high standards of fairness in failing to recognize the Applicant’s assertions that corruption and incompetency of the administration in her home country is still a very serious problem as various human rights organizations have compiled reports that stated testament to such assertion that the Director’s decision should be considered unreasonable in the scope of public law;

(8)  That the Director’s decision to refuse the Applicant’s claim was wrong and irrational that leave should be granted for it to be judicially reviewed.

13.The Applicant was however by then already out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

14.As the last day of the 3-month period for him to file her Form 86 fell on 11 October 2025 after discounting the month of August 2025 for court’s vacation, the Applicant was therefore some 2 ½ months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicant’s case, a delay of 2 ½ months must be considered as very substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, and as the record shows that the Director’s decision was sent on the same day of 11 June 2025 to the Applicant’s then reported address and the same as stated in her present application without being returned through undelivered post, and given the experience she already had from her previous claim, I am not satisfied that the Applicant have provided any good or valid reason for her serious delay.

16.As for the merits, if any, of her intended application, those grounds put forward by the Applicant as noted above are just some vague and bare assertions containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to her case, or in what way did the Director or the immigration officer err in the decision or that it was unfair or unreasonable in the consideration and assessment of her request to make a subsequent claim when the fact is that she failed to provide any evidence in writing to support her request despite repeated reminders from the Director for her to do so. As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

17.Moreover, the Applicant recently on 13 May 2026 filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country and which she wishes to do so as soon as possible.

18.In the premises, and as I do not find any error of law or procedural unfairness in the decision of the Director or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim, nor is there any prospect of success in her intended application for judicial review, and in view of her latest confirmation that it is now safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 27^th day of August 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