Nguyen Van v. V. Director of Immigration

HCAL 1655/2024

[2024] HKCFI 3141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1655 OF 2024

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 8 August 2024 (“the Director’s Decision”) refusing his claim on the applicable risks[1], which had been determined in his previous claim (“the previous claim”). He was a minor in the previous claim, acted by his parents, his father and mother as his guardian ad litem. His previous claim depended on the facts of his parents. He is now 24, an adult.

2.The applicant did not ask for a hearing. I shall deal with his application on paper.

The procedural history

3.In the previous claim, the applicant’s parents claimed that, if refouled, they would be harmed or killed by a loan shark and his subordinates because his mother could not repay the loan. He would also be killed by gangsters and government officials because of his father’s refusal to take the land compensation from the government for resumption of land.

4.The Director in the previous claim rejected the claim of his parents and him for the reasons that from the evidence, there was no real risk of harm if they returned to Vietnam. Also, state protection will be available and internal relocation viable.

5.The parents and the applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”), which dismissed their appeal as the Board concluded that they were unable to establish any of the applicable risks if they return to Vietnam.

6.The Director issued a deportation order on 30 November 2018. The applicant was deported to Vietnam on 14 December 2018.

7.The applicant was arrested by police on 15 August 2023. He admitted that he illegal entered Hong Kong on 13 August 2023. He was referred to the Immigration Department on 16 August 2023. He was convicted of the offence of illegal remaining in Hong Kong. He was sentenced to 18 months’ imprisonment and is being detained in prison. By a written submission dated 26 April 2024, he applied to the Director for a subsequent claim for the reason that after he was deported to Vietnam, he was in dispute with the police officers because of a land resumption operation of his grand-parents’ land. His grand-parents opposed to the police’s operation whereupon a police officer was trying to take away his grandmother. Seeing this, the applicant took up a shovel and hit a police officer. He fears that he may be arrested if he returns to Vietnam.

8.The immigration officer referred to the country of origin information and found that even if the applicant’s story is accepted, he will receive a fair trial in Vietnam as the law there presumes a charged person as innocent until proved guilty beyond reasonable doubt. The Vietnam regime provides Government Inspectorate to deal with complaints and combat corruption in accordance with the laws. The immigration concluded at paragraph 18 of the Director’s Decision that his application under section 37 ZO of the Ordinance was not made out.

Application for judicial review of the Director’s Decision

9.The applicant filed Form 86 on 23 September 2023 for leave to apply for judicial review of the Director’s Decision.

10.In the applicant’s affirmation in support of his application, he said that the Director’s Decision is unfair and unreasonable.

DISCUSSION

11.Under section 37ZO of the Ordinance, the applicant has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.

12.The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact-finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

14.For the reasons given by the immigration officer, the Director refused the applicant’s subsequent claim application. The applicant has raised no valid reason to challenge the Director’s Decision. There is no reason for this court to interfere with the findings of the immigration officer.

15.There is no reasonable prospect of success in his intended application for leave for judicial review of the Director’s Decision.

DISPOSITION

16.The applicant’s application is dismissed.

The applicant was unrepresented.