Pham Van Nham v. Director of Immigration

HCAL 1050/2021

[2021] HKCFI 2733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1050 of 2021

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

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 (“Director”) dated 19 July 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his earlier claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all applicable grounds but which he never brought any appeal to the Torture Claims Appeal Board (“Board”), and after being repatriated to his home country, he later sneaked back into Hong Kong and requested to make a subsequent claim on the same basis as before.   

2.The Applicant, a 29-year-old national of Vietnam, was born and raised in Village Xuan Phuc, Nhu Thanh County, Thanh Hoa Province, Vietnam.  After leaving school he worked in a shoe factory in Hai Phong, and in 2012 he returned to his home village to operate his own vehicle repair shop with financial assistance from his parents.

3.To meet his business cash flow problem, the Applicant in 2013 borrowed a loan from a local money-lender repayable with monthly interest payments.  However, his business still did not fare well and soon he was having difficulty making his loan repayments, and after having been threatened and beaten by his creditor and his men on several occasions, the Applicant in July 2014 fled to Quang Ninh Province, and on 11 September 2014 he departed Vietnam for China, and from there he sneaked into Hong Kong on the following day and raised his non-refoulement claim with legal representation from the Duty Lawyer Service (“DLS”) on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his outstanding debts.       

4.By a Notice of Decision dated 9 May 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 his 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 his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of his creditor to seriously harm or kill him other than to put pressure on him to repay his debts, that in the absence of 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 95 million people spread across a vast territory of more than 310,000 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 Vietnam away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

6.The Applicant as noted above did not lodge any appeal to the Board against the Director’s decision, and on 26 January 2018 he was repatriated to Vietnam.

7.Upon returning to his home village, his creditor came to his home looking for him for repayment of his loan, and when he was still unable to do so, his creditor and followers then beat him again, and threatened to kill him if he still failed to repay his loan soon.

8.The Applicant then pledged his parents’ house to a friend for a loan to start a livestock and vegetable farm in the hope of earning enough money to repay his debts, but in late 2020 his farm was damaged by a heavy flood and as a result he lost his business, and so to avoid being harmed or killed by his creditor, he departed Vietnam again in April 2021 for China, and from there he again sneaked into Hong Kong on 1 June 2021, and after he was arrested by police on 16 June 2021 and was referred to the Immigration Department, he requested to make a subsequent claim on the basis that his creditor is still chasing him for repayment of his loan and that he would be harmed or killed 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, on 2 July 2021 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 on 5 July 2021.

11.By a Notice of Decision dated 19 July 2021 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 his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

12.On 26 July 2021 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he just stated that he does not agree with the decision as his life would still be in danger if refouled to his home country but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

13.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for a subsequent claim, and given the Director’s correct finding that the risk of harm in his claim in both decisions is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong:  TK v Jenkins & Anor [2013] 1 HKC 526. As such and for these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.

14.In the circumstances, and as his non-refoulement claim has already been rejected by the Director on the previous occasion, I am mindful of the fact that the Applicant appears to be trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before, but given the fact that for whatever reason he never brought any appeal or petition to the Board as part of his entitlement to a 2-tiers screening process under the Unified Screening Mechanism (“USM”) for his non-refoulement claim, and that it was also open to him under Section 37ZO of the Ordinance to make a subsequent claim provided certain conditions as noted above are complied with, and while he failed to do so in his present application, given the nature of such proceedings, I am unable to find with certainty that he has been guilty of abusing the process, and therefore refrain at this stage from considering whether it would be appropriate to make a Restricted Proceedings Order against the Applicant.

Dated the 10^th day of September 2021.

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