Nguyen Thi Tien v. Director of Immigration

HCAL 754/2020

[2023] HKCFI 2862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 754 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 18 March 2020 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her 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 54-year-old national of Vietnam who first entered Hong Kong illegally on 17 January 2015. She was arrested by police on 21 January 2015, and was subsequently repatriated to Vietnam on 28 February 2015.

3.However, less than 2 months later on 7 April 2015 the Applicant sneaked back into Hong Kong, and on 9 April 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditors over her outstanding debts.

Previous Non-Refoulement Claim          

4.By a Notice of Decision dated 18 October 2016 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 her 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 her creditors upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her for payment of her debts, that in any event they were private monetary disputes 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 94 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 her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditors to locate her.

6.The Applicant’s subsequent late appeal against the Director’s decision was refused and dismissed by the Board on 28 June 2019 upon finding that the delay with the filing of her Notice of Appeal was serious and significant, that there was no good reason for her such serious delay, that there were no merits in her appeal or her non-refoulement claim, and that the Director was correct to find that if her claim of risk of harm from her creditors were real that it would be negated by the availability of both state protection and reasonable internal relocation to the Applicant upon her return to Vietnam that it refused the late filing of the Applicant’s Notice of Appeal.

7.The Applicant never brought any legal challenge of the Board’s decision by way of judicial review, and was in fact subsequently arrested by the Immigration Department for undertaking unauthorized employment while being released on recognizance, and for which she was on 23 July 2019 convicted and sentenced to prison for 13 months.

Request To Make Subsequent Claim

8.Whilst in prison the Applicant on 14 December 2019 in writing to the Immigration Department requested to make a subsequent claim on the basis that she still fears of being harmed or killed by her creditors over her unpaid debts as before 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 8 January 2020 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did on 5 March 2020 in an interview before an immigration officer with the assistance of a Vietnamese interpreter.

11.By a Notice of Decision dated 18 March 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 her previous claim, and that she failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success.

12.On 23 April 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 her Form or her supporting affirmation filed on the same day. As such I do not find any reasonably arguable basis for her intended challenge.

13.Moreover, by a letter dated 21 August 2023 the Applicant requests to withdraw her application as her problem in her home country has already been resolved that she now wants to return to Vietnam as soon as possible.

14.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 view of her latest confirmation of no problem returning to her home country, I accordingly dismiss her leave application.

Dated the 7^th day of November 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