Nguyen Bui Tu v. Director of Immigration

HCAL 2869/2025

[2026] HKCFI 5545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2869 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:

(1)  Extension of time for the application for leave to apply for Judicial Review be granted;

(2)  Leave for the Applicant to apply for Judicial Review of the decision of Director of Immigration dated 10 July 2025 be granted;

(3)  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

(4)  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as Respondent.

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 10 July 2025 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim raised by his father on his behalf as a minor and based on his father’s claim had been rejected by the Director on all the applicable grounds under the first-tier screening process of the Unified Screening Mechanism (“USM”) but without undergoing the second-tier screening process before the Torture Claims Appeal Board (“Board”) after he was voluntarily repatriated to his home country.

Previous Non-refoulement Claim

2.The Applicant is now a 26-year-old national of Vietnam born on 13 August 2000 to his Vietnamese parents in Village Duong Quan, District Thuy Nguyen, Hai Phong, Vietnam where his father was a casual worker with limited income and had in the past come to Hong Kong on various occasions looking for jobs.

3.In 2013 his father started his own sea products farming business in his home village in Vietnam with the help of a loan borrowed from some local money-lender to be repaid by monthly instalments with interests.

4.However, in late 2014 the business failed, and when his father defaulted in his loan repayment in 2015, the money-lender sent men to threaten his father, and after being beaten by those men, his father on 30 June 2015 fled from his home village with the Applicant who was then aged 14 and departed Vietnam for China, and from there they later sneaked into Hong Kong, and upon their arrest by the police his father then raised a non-refoulement claim jointly for both of them on the basis that if they returned to Vietnam they would be harmed or killed by the money-lender over his father’s debts.

5.By a Notice of Decision dated 22 January 2016 and a Notice of Further Decision dated 24 November 2016 the Director rejected their claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

6.In his decisions the Director took into account of all the relevant circumstances of the father’s claim and assessed the level of risk of harm from the money-lender and followers upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of the money-lender to seriously harm or kill the Applicant’s father other than to press him to repay his debts, that in any event it was a private monetary dispute between the Applicant’s father and the money-lender only without any official involvement that state or police protection would be available to the Applicant and his father 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 his father as an able-bodied adult with working experience to move with the Applicant to other part of the country away from their home village in large cities such as Ho Chi Minh City where it would be difficult if not impossible for the money-lender to locate them.

7.The Applicant’s father then lodged an appeal to the Board against each of the decisions of the Director for himself only, and subsequently on 26 September 2018 the Applicant who was by then aged 18 voluntarily returned to Vietnam without bringing any appeal to the Board against the Director’s decision.

Request to Make a Subsequent Claim

8.Upon returning to his home village, the Applicant was then chased by his father’s creditor with threats to repay his father’s debts, and in order to do so and to make his own living, he started his mobile phone business with the help of a loan borrowed from another money-lender by the name of Hiep to be repaid within 2 years and with monthly interests payments which he initially managed to make from his business income as well as to repay his father’s debts by instalments.

9.However, in September 2024 his shop was destroyed by a flood, and when he was unable to repay his own debts or his father’s debts, both money-lenders sent men to threaten him, and after being beaten by those men and with a warning that they would kill him next time if he still failed to repay those loans, the Applicant became fearful for his life and departed Vietnam on 18 April 2025 for China, and from there he sneaked into Hong Kong on 20 April 2025, and was arrested by police 2 days later on 22 April 2025, and was thereafter referred to the Immigration Department for investigation.

10.On 6 May 2025 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that if refouled to Vietnam he would be harmed or killed by the money-lenders of both his father and his own for failing to repay those debts.

11.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.”

12.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 by a letter dated 10 June 2025 in which he gave further details of his loan, the loss of his business and the subsequent threats from his creditor in support of his request.

13.By a Notice of Decision dated 10 July 2025 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof as regard the threats from his father’s creditor is the same as that of his previous claim and hence does not amount to any significant change of circumstances which would give his intended subsequent claim any realistic prospect of success when taken together with the material previously submitted in respect of his previous claim, while for his claimed threats from his own creditor Hiep over his own debts, the Director found that it was just some bare assertions of the Applicant and is considered as too far-fetched, that his inaction to immediate raise his claim for protection upon arriving in Hong Kong on 20 April 2025 until after he was arrested by police casted doubt on the credibility of his claimed fear, that in any event it is of the same private nature of monetary dispute as his previous claim and does not constitute any significant change of circumstances which would give his intended subsequent claim a realistic prospect of success, and that similarly state or police protection as well as reasonable internal relocation would still be available to him to lower or negate his perceived fears upon his return to Vietnam.

Application for Leave to Apply for Judicial Review of Director’s Decision

14.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 his intended challenge:

(1)  That the Director reached the decision wrongly in assessing his non‑refoulement claim in that the decision is not reasonable or fair as required by the Wednesbury test in failing to recognizing that his right to life must be protected by criminal law from the killing that he may face if deported back to his 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 their 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 his claim;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his 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 him to respond to questions that he was not in a position to offer his response;

(6)  That the Director had clearly shown unfair attitude against the Applicant which in itself is enough to render his 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 his 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.

15.The Applicant was however by then already out of time with his 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.

16.As the last day of the 3-month period for him to file his Form 86 fell on 10 November 2025 after discounting the month of August 2025 for court’s vacation, the Applicant was therefore more than 6 weeks late with his 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.

17.In the Applicant’s case, a delay of more than 6 weeks must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, nor did he request any oral hearing for his application, and as the record shows that the decision was sent on the same day of 10 July 2025 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

18.As for the merits, if any, of his 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 his case, or in what way did the Director or the immigration officer err in the decision or was procedurally unfair or unreasonable, or how did the Director fail to properly consider the relevant COI or to apply high standards of fairness in his assessment of the Applicant’s request to make a subsequent claim. 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 his intended challenge.

19.There is no question that the Director and his immigration officers are as of necessity entitled to strictly apply Section 37ZO of the Ordinance as a stringent filtering process in dealing with requests to make subsequent claims so as to eliminate unmeritorious claims by claimants after their previous claims have already been properly and finally determined and disposed of to prevent abuses by them to avoid or delay their removal by the Immigration Department.

20.Nevertheless, given the seriousness of the issue at hand and the implication of the Director’s refusal in the present case to allow the Applicant to make his subsequent claim, thereby denying him of the 2-tier screening process of his intended subsequent claim, the fact is that his previous claim was essentially brought by his father and based on his father’s claimed risk of harm from his father’s creditor over his father’s debts which had nothing to do with the Applicant when he was then a minor at the age of 14, and that after their claims were rejected by an immigration officer for the Director, his father did not lodge any appeal for him to the Board for the second tier screening process when he was subsequently voluntarily repatriated back to Vietnam, it seems to me reasonably arguable that the immigration officer had failed to apply high standards of fairness to take all of these matters into account sufficiently or at all in the consideration of the Applicant’s request to make a subsequent claim based on his own personal circumstances some 7 years later.

21.Furthermore, as noted above in the Director’s decision, the immigration officer found the Applicant’s bare assertions of having been threatened and assaulted by his creditor Hiep and subordinates over his debts as too far-fetched but without providing any evidential basis or reasons for such finding, while the criticism of his failure to raise his claim upon first arriving in Hong Kong on 20 April 2025 until he was arrested by police and thus casted further doubt on the truthfulness of his claim seems to me too harsh or unjustified as the Applicant was arrested on 22 April 2025 that his inaction for 2 days under the circumstances does not appears to me significant enough to undermine the credibility of his claim, nor were these issues if they were indeed matters relevant to the officer’s finding on credibility ever raised with the Applicant either in an oral interview or by way of questions in writing to the Applicant so as to give him an opportunity to respond or explain, but neither of which did the officer appear to have done.

22.As for the Director’s finding of internal relocation option being similarly available to the Applicant to negate whatever risk that may arise from his intended subsequent claim on the basis of such finding in the previous claim, as noted above that that assessment made in the previous claim was based essentially on his father’s situations some 9 years ago rather than on the Applicant himself in his present situation, nor did the immigration officer appear to have relied on any relevant COI based on the current situations in Vietnam.

23.In the premises, and for these reasons I am of the view that the Applicant’s intended application for judicial review of the Director’s decision in refusing to allow him to make a subsequent claim is reasonably arguable on the grounds that the Director (1) erred in law in his assessments of the Applicant’s intended subsequent claim; and (2) failed to apply high standards of fairness in assessing the Applicant’s request to make his subsequent claim, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

24.Accordingly I extended time to the Applicant’s late application, and grant leave for him to apply for judicial review of the Director’s decision based on the grounds stated above, and direct that he shall file and issue his originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Director as respondent.

Dated the 6^th day of October 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