Nguyen Ngoc Tuan v. Director of Immigration

HCAL 1175/2022

[2023] HKCFI 464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1175 of 2022

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 (“the Director”) dated 7 October 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his 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 applicable grounds.

2.The Applicant is a 37-year-old national of Vietnam who previously entered Hong Kong illegally on 23 November 2015 and subsequently raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his outstanding debts.

Factual Background

3.The Applicant was born and raised in Thanh Hoa, Vietnam. After leaving school he worked as a farmer, and in 2010 started to run a fruits store in his home district on a loan borrowed from a local money-lender repayable within 5 years with interests charged on the loan payable every month.

4.However, in June 2014 he was forced to close down his fruits business after his stocks were all destroyed by a severe flood, and when he was unable to repay his loan, his creditor sent men to beat him with wooden sticks, causing him injuries all over his body which required medical treatments.

5.After several such beatings, the Applicant fled from his home to hide in a relative’s place, but when he heard that his creditor had sent men looking for him everywhere, he felt it was no longer safe to remain in Vietnam, and so on 21 November 2015 he departed for China, and from there he later sneaked into Hong Kong and raised a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 April 2017 and attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

Previous Non-Refoulement Claim

6.By a Notice of Decision dated 12 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”).

7.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 loan, that in any event it was a private monetary dispute between them 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 spread across a vast territory 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 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.

8.The Applicant’s appeal against the Director’s decision was also dismissed by the Board on 23 November 2018 after hearing him in evidence and submissions and upon finding it was a private monetary dispute without any official involvement that any risk that might arise therefrom would be negated by state/police protection or avoided by reasonable internal relocation available to the Applicant upon his return to Vietnam that his claim for non-refoulement protection failed on all the applicable grounds, and that the Board also confirmed the Director’s decision.

9.The Applicant did not bring any legal challenge of the Board’s decision by judicial review, and on 18 December 2018 he was repatriated to Vietnam.

10.More than 3 years later on 1 July 2022 the Applicant again entered Hong Kong illegally, and was arrested by police on 24 July 2022 when he was referred to the Immigration Department for investigation.

Request To Make Subsequent Claim

11.On 1 August 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that upon his return to his home country, he discovered that his creditor is still looking for him everywhere that he still fears of being harmed or killed if refouled to Vietnam.

12.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.”

13.Accordingly, on 5 August 2022 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, but which he never did despite being given further time to do so.

14.By a Notice of Decision dated 7 October 2022 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 any 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.

15.On 31 October 2022 the Applicant filed a 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 merely stated that he does not agree with the decision as his life is still in danger in his home country that he cannot return but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

16.As such and in the absence of any or sufficient evidence in writing from the Applicant to an immigration officer in support of his such request, or of any error of law or irrationality or procedural unfairness in his process before the immigration officer or in the Director’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

17.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 subsequent claim, and given the correct findings by both the Director and the Board in his previous claim upon which his proposed subsequent claim is factually based that both state protection and internal relocation would be available to the Applicant upon his return to Vietnam to negate the same risk that might arise from his subsequent claim, 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.

Dated the 17^th day of February 2023.

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