Bui Ngoc Lam v. Director of Immigration

HCAL 1348/2020

[2023] HKCFI 2800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1348 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:

1.   Leave to apply for Judicial Review be granted;

2.   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

3.   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 June 2020 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after he had earlier withdrawn his previous claim without any determination by the Director on its merits and was subsequently repatriated to his home country in October 2017, and some 2 years later in December 2019 the Applicant sneaked back into Hong Kong, and upon his arrest by the police, he submitted a request to the Director to make a subsequent claim.

Previous Non-Refoulement Claim  

2.The Applicant is a 32-year-old national of Vietnam who claimed to have borrowed a loan for his business investment, but due to inexperience his business was not successful, and when he was unable to repay his loan, his creditor sent gangsters to beat him and threatened to kill him. 

3.Fearing for his life, the Applicant left Vietnam in early June 2015 and entered Hong Kong illegally on 10 June 2015, and was arrested by police on 21 June 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection by way of a written representation dated 13 July 2015 in which he claimed that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts.

4.On 2 August 2016 the Applicant was referred to the Duty Lawyer Service (“DLS”) for publicly-funded legal assistance for his claim, but one month later on 2 September 2016, and before any determination had been made by the Director on the merits of his claim, the Applicant through DLS withdrew his claim, and was on 18 October 2017 repatriated to Vietnam.        

Request To Make Subsequent Claim

5.Upon returning to Vietnam, the Applicant settled in Ho Chi Minh City, but in 2019 he was located by the same creditor as before, and after being beaten by the creditor and his followers on 10 December 2019, the Applicant again departed Vietnam and sneaked into Hong Kong on 25 December 2019, and after he was arrested by police on 15 March 2020 and was referred to the Immigration Department, the Applicant in writing on 24 April 2020 requested to make a subsequent claim on the basis that he would be harmed or killed by his creditor over his outstanding debts.

6.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.”

7.The Applicant was then, and still is, being detained at the Castle Peak Bay Immigration Centre (“CIC”), and on 11 May 2020 the Director in writing required him to provide further information and evidence in writing in support of his Request within 14 days, and that he was also informed of his right to seek legal representation for his request and the availability of publicly-funded legal assistance.

8.The Applicant submitted his replies by a letter dated 13 May 2020, and on 1 June 2020 he was visited at CIC by an immigration officer with a Vietnamese interpreter during which he submitted further information in support of his Request to make a subsequent claim.

Director’s Refusal of Request

9.By a Notice of Decision dated 10 June 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 hence did not constitute a significant change of circumstances since his previous claim was finally determined, and that such change when taken together with the material previously submitted in support of his previous claim would give his subsequent claim a realistic prospect of success.

Application for Judicial Review

10.On 16 June 2020 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in his supporting affirmation filed on the same day he stated that the decision was grossly unjust and unfair as he cannot return to Vietnam where his life will be in danger. He however did not request any oral hearing for his application.

11.The Applicant did not provide any relevant details or particulars or elaboration as to how the decision was unfair or unjust, but given the seriousness of the issue at hand and the implication of the Director’s refusal to allow him to make a subsequent claim after his previous non-refoulement claim had been withdrawn without any determination as to its merits, the Court will adopt an enhanced standard in scrutinizing the Director’s reasons for refusing to allow him to make his subsequent claim.

12.The Director’s reasons for refusing the Applicant’s Request as set out in the decision are as follows:

“9. Turning to the Request, in your submitted letters, you stated that, after you return to Vietnam in 2017, you went to Ho Chi Minh city for settlement. However, the same creditor discovered your whereabouts and beat you on 10 December 2019. You later fled to Hong Kong out of fear. Regarding the reason of the withdrawal of your last non-refoulement claim, you stated in your letter of 1 June 2020 that ‘I learnt that my previous non-refoulement claim was withdrawn in 2016. However, I did not know what the reason was. I was guided by my lawyer to sign an unknown paper and only then I learnt that my claim was withdrawn.’

10. After careful examination, it is noted that the information you provided as mentioned in paragraph 9 does not constitute a significant change of circumstance which would give the intended subsequent claim a realistic prospect of success.

11. In the light of the above, it is not accepted that there has been a significant change of circumstances since your previous claim was finally determined and the change, when taken together with other materials submitted in the Request and those submitted in support of your previous claim, would give your intended subsequent claim a realistic prospect of success. The Request is therefore refused, i.e. you may not make a subsequent claim for non-refoulement protection under the USM.”  

Discussion

13.While the Director was entitled to rely on whatever limited information or materials previously submitted by the Applicant in his written representation of 13 July 2015 for his previous claim, the fact is that no findings or determination of the merits of such claim had ever been made by the Director before it was withdrawn by the Applicant in 2016, and hence there seems to me to be no factual basis for the Director to find that there has not been a significant change of circumstances since the Applicant’s previous claim was finally determined when it had in fact never been determined, or that such change when taken together with other materials submitted in the Request and those submitted in support of his previous claim would give the Applicant’s subsequent claim a realistic prospect of success without the Director actually conducting any screening process or making any factual findings so as to determine the intended subsequent claim under all the applicable grounds before arriving at such conclusion, and if the Director did do so, it seems to me that he had failed to give any or sufficient reasons or explanation for arriving at such conclusion.    

14.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Director’s decision is reasonably arguable on the grounds that (1) the Director erred in holding that the Applicant’s previous claim had been finally determined when it had in fact been withdrawn before any determination; (2) that the Director erred in finding that there had not been any significant change of circumstances since the Applicant’s previous claim was finally determined or that the change when taken together with other materials submitted in the Request and those submitted in support of his previous claim would give his intended subsequent claim a realistic prospect of success when there was no factual basis for the Director to do so; and (3) the Director failed to give any or sufficient reasons or explanations for his such findings, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Disposition

15.Accordingly, I grant leave to the Applicant to apply for judicial review of the Director’s decision on the grounds stated above, and direct that he shall file and issue the 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 31^st day of October 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