Vu Kim Yen v. Director of Immigration

HCAL 556/2025

[2025] HKCFI 2158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 556 OF 2025

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

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 26 February 2025 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claims 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 67-year-old national of Vietnam who had previously entered Hong Kong illegally in 2013 and was subsequently repatriated to Vietnam again did so on 16 June 2015, and was arrested by police on 19 December 2015 for the offences of illegal entry and obtaining pecuniary advantage by deception, and was subsequently convicted and sentenced to prison for 15 months, whereupon she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her unpaid debts.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 24 November 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”).

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 her creditor and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that her problem with her creditor was a private monetary dispute between the 2 of them only 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 95 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 her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

5.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 27 June 2019 after hearing her in evidence and submissions and upon finding no merits in her claim or appeal, and that it also confirmed the Director’s decision.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 9 May 2025 upon finding none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 1847/2019 [2025] HKCFI 1909).

Request To Make Subsequent Claim

7.However, even before her application for judicial review of the Board’s decision was heard by the Court, the Applicant on 30 September 2024 in writing to the Immigration Department requested to make a subsequent claim on the same basis as before that if refouled to Vietnam she would be harmed or killed by her creditor over her outstanding debts borrowed for her failed business as alleged in her previous claim.

8.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.”

9.Accordingly, the Director by a letter dated 17 October 2024 required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did via her lawyer from Duty Lawyer Service (“DLS”).

10.By a Notice of Decision dated 26 February 2025 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 given the findings by both the Director and the Board in her previous claim of the availability of both state protection and internal relocation to the Applicant upon her return to Vietnam to negate the same risk that may arise from her intended subsequent claim.

11.On 4 March 2025 the Applicant again filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Director reached the decision wrongly in assessing the Applicant’s intended subsequent claim in that the decision as not reasonable or fair as required by the Wednesbury test in failing to recognizing that her right to life must be protected by criminal law from the killings that she may face if deported back to her home country;

(2)  That the Director failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her subsequent claim;

(3)  That the Director acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the personal background and experience of the Applicant into account in assessing her claim;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in her home country would not be able to protect but failed to consider or give weight to such evidence and instead ruled otherwise against the Applicant’s subsequent claim;

(5)  That the Director was procedurally unfair or improper when assessing whether or not to accept explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer her response;

(6)  That the Director had clearly shown unfair attitude against the Applicant which in itself is enough to render her decision void;

(7)  That the Director failed to attain high standards of fairness in failing to recognize the Applicant’s assertions that corruption and incompetency of the administration in her home country is still a very serious problem as various human rights organizations have compiled reports that stated testament to such assertions that the Director’s decision should be considered unreasonable in the scope of public law;

(8)  That the Director’s decision to refuse the Applicant’s subsequent claim was wrong and irrational that leave should be granted for it to be judicially reviewed.

12.These are however all just vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to her case, or in what way did the Director or the immigration officer err in the decision or that it was unfair or unreasonable, or how did the Director act procedurally unfair or improper or fail to properly assess the relevant COI, or what relevancy was state acquiescence to her claim when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official or political element at all. As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant either in her Form or at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.

13.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 to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 29^th day of May 2025

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