Le Ngoc Diep v. Director of Immigration

HCAL 367/2020

[2023] HKCFI 2263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 367 OF 2020

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:

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 29 January 2020 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all applicable grounds, and that his subsequent appeal to the Torture Claims Appeal Board (“Board”) was withdrawn at his request whereupon he was repatriated to his home country.   

2.The Applicant is a 40-year-old national of Vietnam who first entered Hong Kong illegally on 9 March 2015 and was arrested some 2 years later on 16 February 2017 for illegally entering and staying in Hong Kong and for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim with 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.

Previous Non-Refoulement Claim  

3.By a Notice of Decision dated 5 December 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”).

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 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 of 96 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 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’s appeal against the Director’s decision was dismissed by the Board on 22 February 2018 upon his subsequent written request of 29 January 2018 to withdraw his appeal as he considered that it was safe for him to return to his home country, and that the Board also confirmed the Director’s decision, whereupon the Applicant was shortly thereafter repatriated to Vietnam.

Request To Make Subsequent Claim

6.Less than one year later on 31 January 2019 the Applicant was arrested by police for illegally entering and remaining in Hong Kong for which he was again convicted and sentenced to prison for 15 months, during which he in writing on 1 November 2019 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 in his previous claim over his outstanding debts if refouled to his home country.  

7.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.”

8.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 16 December 2019 and also attended a screening interview before an immigration officer with the assistance of an interpreter.

9.By a Notice of Decision dated 29 January 2020 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.

10.On 10 March 2020 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 just stated that he does not agree with the decision as he cannot return to his home country where his life will be in danger but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. 

11.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 to make a subsequent claim.

12.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.

13.In the premises, as I am for the stated reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given the unchallenged findings by the Director in his previous claim of the availability of both state protection and internal relocation upon his return to Vietnam to negate any risk from essentially the same source as before, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss the Applicant’s leave application.

Dated the 4^th day of September 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