Nguyen Thi Yen v. Director of Immigration
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HCAL 992/2026 [2026] HKCFI 4965 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 992 of 2026 BETWEEN
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 granted. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 1 June 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 21 May 2026 (the “2026 Notice”) refusing her request to make a subsequent application for non‑refoulement protection (the “Request”). Background 2.The Applicant is a Vietnamese national, now aged 41. She entered Hong Kong illegally on 3 January 2021. She surrendered to the Immigration Department on 24 January 2021 and lodged a non-refoulement claim by written signification dated 19 February 2021 (the previous claim). In gist, she claims she will be harmed or killed by a moneylender with triad background for being unable to repay her loan borrowed from him. Her previous claim under Torture Risk[1]; BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4] grounds was rejected by the Director’s Notice of Decision dated 29 November 2021 (the “2021 Notice”). She appealed. Her appeal was dismissed by the Board’s Decision dated 18 August 2022 (the “Board’s Decision”). She promptly applied for leave to apply for judicial review of the Board’s Decision under HCA 831/2022. Before that leave application was determined, she made the Request for making a subsequent claim on 26 February 2026. Her Request was rejected by the Director in his 2026 Notice. She now applies for leave to apply for judicial review of the 2026 Notice. This leave application and the leave application in respect of the Board’s Decision were heard together. The latter leave application was refused. The Applicant’s previous claim 3.The Applicant’s personal background, the factual background leading to the present application, the basis of her previous claim and the arguments she 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[5] for reference. In gist, she claims, if returned to Vietnam, she will be harmed or killed by a moneylender with triad background for being unable to repay her loan borrowed from him. 4.Her case is that her parents-in-law gave her and her husband a plot of land of 400 square metres on which she and her husband built their house. Her husband had left home to work in Hanoi. In 2015, the Applicant wanted to use the rest of the land to operate a farm raising chickens and pigs. She borrowed 400 million Vietnamese Dongs at a monthly interest of 20 million Dongs from the moneylender. She was able to pay interest until November 2017 when all of her pigs died of swine flu and her chickens were also gradually dying. Nevertheless, the moneylender gave her indulgence by reducing the monthly interest by 50% to 10 million Dongs. Then the Applicant grew vegetables on the farm to make interest payments. In August or September 2019, she became unable to pay. The moneylender came to her home with two associates and demanded to seize her land to set off the loan. Upon the Applicant begging for more time to pay, the moneylender agreed and left. Thereafter the moneylender called her once every week and threatened to kill her if she did not pay. One day in October 2020, a year later, the moneylender called the Applicant to demand payment. The Applicant could not pay. Then the moneylender and two of his associates arrived. They beat her back with wooden poles for a few minutes. Then, they left, after threatening to kill her if she did not pay. Out of fear for the safety of her children, the Applicant left them to the care of her parents and then returned to her own home. One day in November 2020, the moneylender and three associates came to her home unannounced. His associates hit her right leg several times. The Applicant fled. The moneylender and his associates did not chase after her. The Applicant ran to her parents’ home a few minutes away. She lived with her parents until January 2021 when she went to China. While in Hong Kong, she learned from her parents that the moneylender and two associates had been to her parents’ home to ask for her whereabouts. Her mother told the moneylender that the Applicant had left for Hong Kong. The moneylender told her mother to relay to the Applicant that she should return to Vietnam and repay the debt and threatened to kill her if she did not pay after her return. The case officer’s finding in the previous claim 5.The immigration officer who processed the Applicant’s previous claim (the “previous case officer”) assessed the Applicant’s claim on the basis of the primary facts of the case as the Applicant had asserted. She found the Applicant’s injuries on the two assaults were not serious and did not attain the minimum level of severity. On the first assault, she was beaten for a few minutes on her back with wooden poles and recovered in about half a month without seeking medical treatment. On the second assault, the moneylender’s associates just hit her leg and she was allowed to flee without being chased after. The moneylender gave the Applicant indulgence in terms of time and 50% interest reduction for about three years before using violence. On such evidence, the case officer found the moneylender had no intention to seriously harm the Applicant or to kill her. 6.On the basis of authoritative and credible country of origin information (“COI”), the case officer found, despite corruptions and other problems with the Vietnamese police force, the government has been taking active steps to improve the situation. The COI show that the government combated corruption in the government at all levels and increased professionalism in the police and stepped up its enforcement of the law, including prosecuting corruption and illegal loan sharking activities. She rejected the Applicant’s claim that she could not obtain reasonable state protection in Vietnam. 7.The case officer also found the Applicant could relocate to other areas in Vietnam, such as Ho Chi Minh City and Da Nang to avoid the risk and that given her age, education level and experience it would not be unduly harsh for her to relocate. It rejected the Applicant’s claim that the moneylender could locate her anywhere in Vietnam through his social network and clandestine connection in the government as unsupported by evidence. 8.For all these reasons, the previous case officer found the Applicant’s perceived fear not real and foreseeable and that she could avoid or negate the risk, if it turns real, by seeking state protection and internal relocation. Hence, she refused the Applicant’s claim for protection. 9.The Board analysed the Applicant’s evidence critically and found a number of inconsistencies and implausibility in her evidence. For that reason, it found the Applicant incredible and rejected her evidence in its entirety as unreliable. It took the view that the Applicant’s claimed fear of harm was founded on unreliable evidence and information. In other words, it found the Applicant’s claimed fear not genuine and not honestly held. Hence, it came to the conclusion that she had failed to establish the factual basis to support her claim for non-refoulement protection. That is the primary basis of the Board’s Decision. 10.However, the Board also assessed her claim on the basis of the factual case as she asserted, but not her inference from those basic facts. For the same reasons as given by the previous case officer, it found in the further and alternative that even if the basic facts of her claim is accepted, the Applicant still failed to establish the factual basis to support her claim for protection. The Applicant’s intended subsequent claim 11.The Applicant’s intended subsequent claim as advanced by her in her Request is based on her previous claim and the following six allegations. First, the moneylender and his subordinates are angry and are still looking for her in order to collect the outstanding debt and threatening her. Second, she had no money to repay the debt and was unable to reach agreement with the moneylender on a repayment plan. Third, she saw news about cases similar to hers on the Internet. She found in those cases that the police only intervened when there are serious consequences arising from the case, such as death. Otherwise, the police is indifferent. She submitted 11 links and 4 new articles about such killing to support her assertions. She said there are also corrupt police officers who accept bribes to protect gangsters making it impossible for people to find justice. Fourth, she said she could not relocate to other cities as there will be many difficulties and obstacles that she would have to face in the new location, such adaptation and finding employment. Fifth, she said the moneylender would be able to find her out in the new location and harm her through his nationwide social network of gangsters and clandestine connections with corrupt elements in the government and police apparatus. Sixth, she said she will be harmed or killed, if refouled. The immigration officer’s finding in the intended subsequent claim (ie the 2026 Notice) 12.The immigration officer found the Applicant had not made out any basis for making the Request. He did not accept the Applicant had provided sufficient evidence in writing to satisfy him that (i) there has been a significant change of circumstances of her case warranting the making of a subsequent claim since her previous claim was finally determined; and (ii) 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. Hence, he refused the Applicant’s Request. The legal principles applicable to judicial review 13.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-maker in an application for making a subsequent claim for non-refoulement is the Director. He, or his delegated immigration officers on his behalf, alone assesses the evidence and finds 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 Director’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6]. The Applicant’s grounds of application 14.At the hearing, after the above legal principle had been explained to the Applicant, she confirmed that she had no complaints about errors of law, procedural unfairness or irrationality in the Director’s decision in the 2026 Notice. However, in her supporting affirmation, she advanced seven grounds of application. These grounds are phrased in general terms and lacking in particulars. She said they were prepared by the Justice Centre on her behalf, but she was unable to provide particulars. In general, her answers were just repetition of her claim for protection and that her life would be in danger returning to Vietnam. These grounds are dealt with below. Ground (1) – She be given another chance to make a subsequent claim 15.Whether the Applicant should be given another chance to make a claim is precisely the issue before the immigration officer upon his consideration of, inter alia, the Applicant’s intended subsequent claim, the supporting evidence or information, his finding of fact, the COI and the law applicable to non-refoulement protection, in particular section 37ZO of the Immigration Ordinance referred to by the immigration officer in the 2026 Notice. That depends on the outcome of this and/or other proceedings, if leave is granted. This ground is lacking in particulars as to why she should be given the chance or what was wrong with the immigration officer’s decision in the 2026 Notice. Ground (2) – The decision is wrong, not reasonable and fair as required by the Wednesbury test 16.Other than asserting that her right to life is protected by Article 2 of the Bill of Rights (ie BOR 2 Risk ground), the Applicant was unable to provide any particulars as to what is wrong, unreasonable and unfair. The Court shall re-consider this ground in its scrutiny of the 2026 Notice. Ground (3) – The Director failed to give weight to the presence of state acquiescence 17.This ground is directed at the previous case officer’s finding in the 2021 Notice. This ground is considered insofar as it may be relevant to the Applicant’s challenge of the 2026 Notice. The Applicant submitted that the police in Vietnam is corrupt and she had no money to pay a bribe for the police to give her protection. State acquiescence had not been advanced before the immigration officer in the intended subsequent claim, let alone police corruption without more is not sufficient to establish state acquiescence. However, the issue of corruption had been considered by the previous case officer. She quoted six pages of COI about seriousness of police and government corruption, abuse of power, government’s effort in fighting corruption, arrest and prosecution of police and government officials for corruption, and increased investigation into illegal debt collection activities, etc. After balancing the COI, the previous case officer considered reasonable state protection available. Anyway, the question of state acquiescence does not arise in this leave application. There is no substance in this ground. Ground (4) – The Director failed to take into account her personal background and failed to give weight to the COI which supports her claim that the police would not be able to protect her 18.This ground is also directed at the previous case officer’s finding in the 2021 Notice. The Applicant was unable to give particulars of her personal background which would enable the immigration officer to give weight to the COI supportive of her claim. Furthermore, the weight to be given to COI is a finding of fact solely for the previous case officer, which this Court may not intervene save for errors of law, procedural unfairness and irrationality in the 2026 Notice. The Applicant could provide no particulars of her relevant personal background and the relevant COI relied on. There is no substance in this ground. Ground (5) – The Director was unfair when assessing whether to accept 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 any response 19.The Applicant was wholly unable to give any particulars of this ground. The validity of this ground may not be assessed. Ground (6) – The Director failed to take such argument into account and failed to give enough weight to such argument 20.There is a total absence of particulars as to what argument the Applicant was referring to. This ground could not be assessed. The Court’s overall scrutiny of the 2026 Notice will cover this ground. Ground (7) – The decision in the 2026 Notice is wrong and irrational 21.There is also a total absence of particulars as to what is wrong or irrational in the 2026 Notice. This ground could not be assessed. This ground is a duplicate of Ground (2). The Court will reconsider this ground in its overall scrutiny of the 2026 Notice. Overall scrutiny 22.In its overall scrutiny of the 2026 Notice, the Court discovered concerns whether the high standard of fairness had been observed by the immigration officer in the making of the decision in the 2026 Notice. The 2026 Notice contains 15 paragraphs. The first seven paragraphs are about procedural matters and the law applicable to the making of a subsequent claim under the Unified Screening Mechanism. Paragraph 8 is a summary of the previous case officer’s and the Board’s conclusions on the previous claim. Paragraphs 9 sets out six statements of facts extracted by the immigration officer from the Applicant’s Request, which purport to be the grounds of the Applicant’s Request. Paragraph 10 is a list of supporting documentary evidence relied on by the Applicant in support of her Request. Paragraph 11 is essentially the immigration officer’s statement that the Applicant did not respond to his request for further evidence. Paragraphs 12 to 14 are the immigration officer’s reasons for decision. Paragraph 15 is the concluding paragraph refusing the Request. 23.Paragraph 12 is a repetition of the law applicable to the making of a subsequent claim set out in paragraph 6. The immigration officer said he would focus on the two requirements which the Applicant must show before she may make a subsequent claim, namely (i) significant change of circumstance and (ii) whether the change when taken into consideration of his previous claim, would give her intended subsequent claim a realistic prospect of success. This paragraph does not mention what his decision is and the basis of his decision. 24.In paragraph 13, the immigration officer said:
In paragraph 14, the immigration officer concluded that by reason of his preceding discussion (by which he must mean paragraph 13), the Applicant had failed to prove the two requirements for making a subsequent claim. Thus, paragraph 13 is the centrepiece of the 2026 Notice. 25.It appears from the first sentence of paragraph 13 that the immigration officer found the Applicant had failed to make out any basis for the Request by simply saying she had no money to pay her debt and had not reached agreement with the moneylender for repayment. But neither did he state the basis of his assertion. Furthermore, what he referred to is only the second of the Applicant’s six grounds of Request which he set out in paragraph 9. All he did in the rest of that paragraph was to blame the Applicant for her failure in meeting the two requirements for making a subsequent claim. 26.Adequate or not, the six grounds are supposed to be the grounds of the Applicant’s Request. It appears that the second ground is the only evidential basis relied on by the immigration officer for finding that the Applicant had failed to make out any basis for the Request. But he did not explain how that ground could give rise to that finding or inference. The rest of paragraph 13 is his criticism of the Applicant’s failure to give further information despite she had been advised about the two requirements for making a subsequent claim. The 2026 Notice is silent relating to those other five grounds. He mentioned nothing about the other five grounds and why those five grounds do not satisfy the two requirements under section 37ZO. He also mentioned nothing about the list of evidence in paragraph 10 relied on by the Applicant as supporting evidence. He gave no reasons why the evidence in the documents listed therein does not support the Applicant’s Request. The 2026 Notice is totally deficient in reasons for the decision therein. 27.The high standard of fairness requires the decision maker to give reasons for his finding. The immigration officer as the decision maker has duty to give reasons for his decision, particularly for his finding of such material fact on which the decision is based. The reason may be obvious to him or even to the Court. But that is no excuse for him not to give reasons for his decision. Finding of fact is a matter solely within the realm of the decision-maker. Even if the court agrees with the decision-maker’s conclusion, it is not for the court to make good his decision by making finding of fact to justify his decision and condone his breach of the high standard of fairness. On this ground alone, it is at least arguable that the decision in the 2026 Notice was irrational and/or made as a result of procedural unfairness involving breach of the high standard of fairness. Conclusion 28.For the above reasons, the Applicant’s leave application in respect of the Director’s decision in his 2026 Notice is granted on the ground of the immigration officer’s breach of the high standard of fairness in failing to give reasons for the decision. Dated the 31st 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 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [4] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [5] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000992_2026_files/the_Board's_Decision.pdf [6] [2018] HKCA 524 at [14(1)] |
Cases cited in this judgment