DINH KHAC NAM v. DIRECTOR OF IMMIGRATION

HCAL 1658/2021

[2022] HKCFI 838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1658 of 2021

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 submission by the Applicant in open court;

1.   Extension of time for application for leave to apply for Judicial Review be refused; and

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.   The applicant was arrested by the police on 23/11/2020.  He was convicted on 7/1/2021 and imprisoned for a total of 18 months for various offences.[1]  He filed his non-refoulement claim on 29/3/2021.

2.   According to the record of the Immigration Department, the applicant had last sneaked into Hong Kong on 29/11/2013. He surrendered to the Immigration Department on 15/1/2014. He filed a non-refoulement claim on 9/4/2014. This claim was rejected by the Director on 30/5/2016 and 19/12/2016 [2]. After serving his sentence for unlawful remaining in Hong Kong, he was repatriated to Vietnam on 31/10/2017.

The non-refoulement claim in 2014

3.  The applicant was born on 25/6/1994.  He was born in My Son Village, Hai Phong City, Vietnam.  He was single.  His family was in Vietnam.  He had education for 12 years.  He had no working experience. He had not joined any political parties.

4.  In early 2013, he could not find any job. His step-father forced him out of home. He stayed with his friend sometimes. He borrowed 200 million VND from a money lender for daily expenses and betting on soccer.[3]  The monthly interest was 10%. He lost all the money in mid-2013.

5.  He attempted to steal money from home to repay his debt. His step-father stopped him and attacked him with a knife. He escaped and stayed around the home village. Nothing happened to him. Later at the end of October 2013, while he was walking on the street of the home village, several unknown men alighted from a car and chased after him. They were armed with sticks and knives. He managed to run away to his friend’s home. It was far away from home. He thought these men were sent by the money lender or his step-father. Nothing happened to him until he left Vietnam.

6.  On 25/11/2013, he travelled by boat to China. He later sneaked into Hong Kong. He last contacted his mother on 16/11/2013. His mother told him that some people came round and looked for him at his home.

7.  Internal relocation was not viable as the money lender would be able to locate him. The police would not intervene as it was a private matter.

The decision of the Director of Immigration dated 30/5/2016

8.  The Director concluded that the risk of harm from his step-father and the money lender was low. The Director dismissed the claim on 30/5/2016 for the following reasons:

(a)  The applicant left home in 2013. Though he claimed his relationship with his step-father was poor all along. He was often beaten. He had never tried to leave home because of this. Even during the incident in which he tried to steal from home, he managed to escape. There was no serious injury which amounted to a minimum level of severity.

(b)  As to the money lender who allegedly sent several men to chase after him in October 2013, he managed to escape. There was no injury at all.

(c)  His step-father had not continued to trace him after he left home. His step-father did not trace him even after the attempted stealing from home. These demonstrated that there was no intention to kill him.

(d)  The money lender took no further action to trace him or attack him. He was safe until he left Vietnam. There was no evidence that the money lender escalated his threat. These circumstances showed that there was no intention to kill.

(e)  There was no evidence that any official was involved. He had not reported the incidents to the police. 

(f)  The Director pointed out that public officials and the police in Vietnam had violated the law with impunity.  There was serious corruption problems and political influence on the police. There was lack of transparency and media freedom. However, the government had publicised budgets, streamlined inspection measures and publicised cases of corruption involving officials. These were efforts to put pressure on local officials. The Central Steering Committee on Anti-Corruption were given more power to fight corruption.  There was new law against domestic violence. News reports revealed prosecutions of officials and police officers for corruption offences. Actions were taken against illegal debt collection. The Director found that the Vietnam government had the determination to tackle malpractices and misconduct of the police.  There was no evidence that the police were unwilling or unable to take action.  There was reasonable State protection.

(g)  Internal relocation was permissible under the law in Vietnam which was a large country with a population of about 95 million.  It was not unduly harsh for the applicant to relocate to Ho Chi Minh City given his age.

9.  There was no genuine and substantial risk of ill-treatment or arbitrary deprivation of life if he returned to Vietnam.  The claim under BOR 2 and 3 were not substantiated by the evidence.

10.  The ill-treatment to the applicant by the money lender arose from a loan dispute.  His situation was not within the ambit of ‘persecution’ as defined under the Refugee Convention.  The claim of persecution risk failed.

11.  There was no severe pain or suffering amounting to ‘torture’ as defined under s.37U (1) of the Immigration Ordinance.  The conduct of the money lender was not instigated by any public officials or under their acquiescence.  The applicant was not targeted by the Vietnam government.  The torture claim failed.

12.  On 19/12/2016, the Director further dismissed the claim based on BOR 2 risk. There was no further update from the applicant despite the invitation from the Director.

13.  The applicant did not file any appeal to the TCAB in relation to both decisions. He was repatriated on 31/10/2017.

The non-refoulement claim in 2021

14.  The applicant sneaked into Hong Kong again in November 2020. He filed the present subsequent claim on the following grounds:

(a)   His debt raised in 2013 was cleared. However, he raised another loan of 400,000,000 VND from another creditor (“Pham”) to start his seafood business. He used his grandparents’ house as collateral.

(b)   His business was smooth in June 2019. However, in late 2019, his business was at a loss due to the pandemic. Pham demanded him to repay within 3 months. After 3 months in September 2020, he was beaten up by Pham and his men as he was unable to repay. Pham also threatened to kill him.

(c)   Despite the pain, he left the hospital and left Vietnam for Hong Kong with the assistance of his friends in October 2020.

15.  The Director pointed out that the fear arose from failure to repay a loan albeit a different money lender. However, there was no substantial change in State protection and relocation options since the last claim was determined. Taking into consideration all the material, there was no realistic prospect of success in the intended subsequent claim. The Director refused to process the subsequent claim on 28/5/2021.[4]

16.  A hearing was fixed on 8/2/2022 before this court. The applicant asked this court to consider the additional evidence submitted by him in a letter dated 21/12/2021 and the attached document. He had no further complaint.

17.  In his covering letter, the applicant asserted that he was unable to repay the debt of 400,000,000 VND due to outbreak of Covid-19 pandemic. He was bankrupt. He was assaulted in September 2020 for failing to repay. The triad colluded with the police to falsely accused him of illegal trading in narcotic substance. He would be sentenced to life imprisonment or death according to article 251, clause 4, of the Vietnamese Penal Code. He sought temporary refuge in Hong Kong.

18.  The applicant submitted 2 documents which purported to be evidence of the prosecution.

(a)   One document is entitled ‘DECISION TO PROSECUTE THE ACCUSED’. It was dated 21/7/2020 signed by Deputy Chief of the CSDT of Hai Phong City. This was the decision to prosecute the accused for illegal trading of narcotics substance. It was sent to the People’s Procuracy for approval.

(b)   The other document is entitled ‘DECISION TO APPROVE THE DECISION TO PROSECUTE THE ACCUSED’ dated 21/7/2020. This was the approval to prosecute the accused for illegal trading of narcotics substance. It also approved the police to investigate according to the criminal Procedure Code. This document was signed by the Deputy Chief Prosecutor of Hai Phong City.

19.  I have the following observations in relation to the additional documents submitted by the applicant:

(a)   In his request for subsequent claim dated 29/3/3021 and 4/5/2021, the applicant had not mentioned the collusion between the triad and the police to prosecute him for illegal trading of narcotics substance.[5] The approval to prosecute was dated 21/7/2020, the applicant should have been informed of the prosecution by 2021. It is unreasonable that he did not mention this in his request for subsequent claim.

(b)   There was no explanation why he did not attach the 2 documents when he made the request for subsequent claim. There was no explanation as to the source of these documents. It appeared they were internal documents between the police and the prosecutor. There is no explanation how the applicant could obtain them.

(c)   According to the applicant, he was initially given 3 months to repay. He failed after the deadline and was assaulted in September 2020. However, the decision to prosecute was dated 21/7/2020. It was well before the deadline for repayment. The assertion that he was framed up, after he failed to repay, was implausible.

(d)   Assuming the 2 documents were formal, there was no mention about the kind of narcotics and the amount involved. This information is essential to determine the gravity of the offence.

20.  Given the above, I do not find those documents authentic or reliable. I reject the assertion that the applicant would be subject to prosecution as stated in the 2 additional documents.

21.  Section 37ZO (2) requires the applicant to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined. The change, together with the material submitted previously, would give the subsequent claim a realistic prospect of success.

22.  The Director has correctly pointed out that there was no evidence that State protection and relocation has changed since the previous determination. There was no significant change of circumstances. The subsequent claim is not substantiated.

23.  This court agrees with the decision of the Director dated 28/5/2021. There is no error of fact and law. The decision is reasonable. This court refuses leave for the intended judicial review.

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