Luu Dinh Quan v. Director of Immigration

HCAL 1465/2021

[2023] HKCFI 1489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1465 OF 2021

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 of the decision of the Director of Immigration dated 17 February 2021 be refused; and

2.   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 17 February 2021 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 first entered Hong Kong illegally on 14 July 2015 and surrendered to the Immigration Department on 15 July 2015 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 8 February 2018 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”).

4.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 them to seriously harm or kill him other than to press him for repayment of his debts, that in any event it was a private monetary dispute between the Applicant and his creditor 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 96 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 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.

5.The Applicant did not then lodge any appeal to the Board, and accordingly on 4 May 2018 he was repatriated back to Vietnam.

6.Almost 2 years later on 26 February 2020 the Applicant sneaked back into Hong Kong, and was subsequently arrested by police on 19 March 2020 and was then referred to the Immigration Department for investigation.

7.It was only then on 22 May 2020 that the Applicant lodged an appeal to the Board against the Director’s decision of 8 February 2018, and while it is not clear whether the Board was aware of his earlier repatriation to Vietnam subsequent to the Director’s decision, the Board regarded his appeal as clearly outside the 14-day period to appeal as required by Section 37ZS(1) of the Immigration Ordinance, and accordingly proceeded under Section 37ZT(2) of the Ordinance to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s notice of appeal.

8.By a Decision dated 3 July 2020 the Board refused the late filing of the Applicant’s notice of appeal upon finding that his explanations as stated therein that the Director’s decision “was somehow got lost and never reached” him and that he “did not know the time limit of appeal” as unreliable and unsupported by any evidence, that there was no merits in his appeal given that his claimed risk of harm from his creditor over his outstanding debts was a private monetary dispute without any official involvement that any such risk arising therefrom would be negated by state protection and internal relocation being available to the Applicant upon his return to Vietnam as found by the Director, and that there were no special circumstances that would make it unjust not to allow the seriously late filing of the Applicant’s notice of appeal.

Request To Make Subsequent Claim

9.Some 3 months later on 19 October 2020 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he still fears of being harmed or killed by his creditor if refouled to Vietnam as he was again assaulted by his creditor and followers and with death threats made against him after he was repatriated to his home country earlier in May 2018.

10.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.”

11.Accordingly, on 18 November 2020 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 via his lawyer from the Pilot Scheme Office for Provision of Publicly-funded Legal Assistance for Non-refoulement Claimants (“PSO”).

12.By a Notice of Decision dated 17 February 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.

13.On 21 October 2021 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of both the earlier Board’s decision which dismissed his appeal against the earlier decision of the Director, and the Director’s decision refusing to allow his request to make a subsequent claim, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he just stated the following:

“To judicial review the Decision dated 3 July 2020 from Torture Claims Appeal Board/Non-refoulement Claims Petition Office.

The Decision has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. I borrowed a large amount of money and I was unable to repay the loan. That’s why I was threatened and beaten by my creditor and some gangsters. They said they would kill me if I did not pay the debt.

My life is in danger now. I am being pursued by my creditor and gangsters. If I return to Vietnam, I will be torture, threatened and killed by them.

I cannot be sent to Vietnam, so I hope that the Court will give me the opportunity to tell all the facts in details and give me a chance to seek justice and help me get asylum in Hong Kong. I hope my case is reviewed again.”

14.The Applicant was by then however out of time with his application as regard both decisions, 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.

15.As the last day of the 3-month period for him to file his Form 86 as regard the Director’s decision fell on 17 May 2021, the Applicant was therefore more than 5 months late with his application, never mind the even earlier Board’s decision, 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.

16.In the Applicant’s case, a delay of more than 5 months to challenge the Director’s decision must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as he also did not request any oral hearing for his application, I am unable to see any good reason for his serious delay.

17.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any ground for his intended challenge of the Director’s decision other than just repeating his claim as before of fear of harm from his creditor over his debts. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or in his decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Director’s decision, nor do I find any merits in his intended application.

18.As regard his intended challenge of the earlier decision of the Board, even assuming that the Applicant would still have the right to do so despite having already left Hong Kong on 4 May 2018 in repatriation to Vietnam as noted above, and accordingly his non-refoulement claim would have been deemed withdrawn and cannot be re-opened as stipulated under Section 37ZF of the Ordinance, his delay with the filing of his Form 86 would have been even more severe and obstinate, for which similarly he has not provided any explanation, or for that matter any reasonably arguable ground or basis for his intended challenge, and given the Board’s detailed analysis and reasoning for dismissing his likewise seriously late appeal, there is similarly no merits in his intended application as regard the Board’s decision either.

19.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as his wife has helped him to pay off his debts that his creditor no longer pursues after him, and hence it is now safe for him to return to his home country.

20.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 as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay and his latest confirmation that it is now safe for him to return to Vietnam, I accordingly dismiss his leave application.

Dated the 7^th day of June 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