BUI VAN GIAU v. DIRECTOR OF IMMIGRATION

HCAL 411/2019

[2022] HKCFI 1224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 411 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 31 October 2018 granted; and

2.  leave to apply for Judicial Review granted.

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 31 October 2018 refusing to allow the Applicant to make what the Director regarded as a subsequent claim for non-refoulement protection after his previous claim had been rejected and that he had been deported back to his home country in Vietnam on 23 March 2018, but 5 months later in August 2018 he sneaked back into Hong Kong, and upon being arrested by police, he raised another non-refoulement claim which the Director as noted above regarded as a subsequent claim.   

Previous Non-Refoulement Claim       

2.     The Applicant who is now aged 42 was born and raised in Duong Quan Commune, Thuy Nguyen District, Hai Phong City, Vietnam. After leaving secondary school, he served in the army reserve in 1998, but was in 1999 charged by the Vietnamese authorities for disclosing classified military information and was sentenced to military prison for 12 months but was released on parole after serving 3 months on condition that he made weekly report to the parole committee to ensure good behavior, but during such reporting he would be detained for hours and subjected to abuses and sometimes even beatings by the committee members.

3.  To avoid such ill-treatments, the Applicant in 2012 fled to another town without further reporting on his parole, and later when he heard that the authorities were looking for him everywhere for breaching his parole, he departed Vietnam on 26 August 2015 for China, and on 29 August 2015 he sneaked into Hong Kong, and was arrested by police on 9 September 2015 for possession of a forged identity card for which he was subsequently convicted and sentenced to prison for 15 months.

4.  Upon his release from prison and was referred to the Immigration Department for deportation, the Applicant in 2016 raised a non-refoulement claim on the basis that if he returned to Vietnam he would be tortured or killed by the Vietnamese authorities for breaching his terms of parole      

5.  By a Notice of Decision dated 7 March 2017 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 his 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”).

6.  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 the Vietnamese authorities upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that it is doubtful that he would face any serious consequences for such minor offence, that reliable and objective Country of Origin Information (“COI”) show that the Applicant would be entitled to due process and proper legal representation to properly defend any charges which may be laid against him under the legal system in Vietnam, and 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 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 Vietnam away from his home district in large cities such as Hanoi where it would be difficult if not impossible for the parole committee to locate him.

7.  The Applicant did not lodge any appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and on 23 March 2018 he was deported back to Vietnam.

Return to Vietnam

8.  Upon returning to his home district in Vietnam, the Applicant resided with his parents, and did not receive any further attention from the authorities over his previous breach of his parole conditions. Soon he started to indulge in betting on football matches by borrowing money from a local money lender for his gambling, but when he was unable to repay his debts, his creditor sent men to threaten him, and after one such occasion in July 2018 when he was beaten by those men and was threatened that next time if he still failed to repay his debts, he would be killed and that his kidneys would be cut out for sale. The Applicant therefore became fearful for his life, and so on 19 July 2018 he fled to Mong Cai and departed Vietnam for China, and from there he again sneaked into Hong Kong one day in August 2018 but was arrested by police on the same day.     

Another Non-refoulement Claim

9.  While being detained at Lai Chi Kok Reception Centre (“LCKRC”), the Applicant by letters dated 27 August 2018, 17 September 2018, 11 October 2018, 14 October 2018 and 18 October 2018 to the Immigration Department raised another non-refoulement claim on the basis that if refouled to Vietnam he would be harmed or killed by his creditor over his outstanding debts, for which he then attended 2 screening interviews by an immigration officer who processed his claim as a subsequent claim under Section 37ZO of the Immigration Ordinance which provides 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.”

Director’s Refusal of Request for Subsequent Claim 

10.  By a Notice of Decision dated 31 October 2018, the Director refused to allow the Applicant to make a subsequent claim upon finding that the low intensity and low frequency of past ill-treatment from his creditor were indicative of a low future risk of harm upon the Applicant’s return to Vietnam, that it was a private dispute between him and his creditor without any official involvement that state/police protection would be available to the Applicant upon his return to Vietnam, and that objective COI show that reasonable internal relocation would also be available within Vietnam with a large population of 96 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh or unreasonable for the Applicant as an able-bodied adult to move to other area away from his home district to large cities such as Hanoi or Ho Chi Minh City where he would not face any risk of being located by his creditor, and concluded that the Applicant had failed to provide sufficient evidence to show that such change in circumstances when taken together with the material previously submitted in support of his previous claim would give his subsequent claim a realistic prospect of success, and that accordingly his request for making a subsequent claim under the Unified Screening Mechanism (“USM”) was considered “not made”.

Application for Judicial Review

11.  On 13 February 2019 the Applicant from LCKRC 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 his Form, and in his supporting affirmation filed on the same day he just repeated his claim that he would be harmed or killed by his creditor over his outstanding debts if refouled to Vietnam without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.  By then the Applicant was also out of time with his application, as Order 53 Rule 4(1) of the Rules of High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 31 January 2019, the Applicant was therefore 13 days late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the present case, the Applicant did not provide any explanation in his Form or in his affirmation for his delay, but as he was then being detained in LCKRC where the decision was sent to him, and taking into account of the inevitable delay for incoming and outgoing mails for inmates in general, his lack of legal representation and the necessity to seek assistance either through the welfare service within LCKRC or from his friends outside, as well as his possible language problem, I am prepared to regard the Applicant’s delay of 13 days in the circumstances as insignificant.   

15.  As for the merits of his intended application, as noted above the Applicant did not put forth any ground for his intended challenge in his Form or affirmation, but given the serious consequences and implications of the Director’s decision, and in dealing with applications of this nature, high standards of fairness require that the reasons for the Director’s decision be scrutinized by the Court for any error of law or irrationality or procedural unfairness.

16.  Firstly, it is relevant to note that the screening of a torture claim or now a non-refoulement claim on all the applicable grounds under USM is a statutory enhanced two-tier process, with the first tier determination made by an officer of the Immigration Department by conducting interviews with the claimant and by receiving from him or her a completed NCF and other documents and materials in support of the claim, and should that claim be rejected, the claimant may then proceed to the second tier of the screening process by appealing/petitioning to the Appeal Board before an Adjudicator who will conduct the determination of the appeal/petition by way of essentially a rehearing of the matter determined by the immigration officer of the claim (see AM v Director of Immigration [2014] 1 HKC 416).       

17.  Accordingly, a person aggrieved by a decision of an immigration officer is entitled to proceed to the second tier of the enhanced screen process by the Appeal Board by way of an appeal/petition under Section 37ZR of the Immigration Ordinance if the decision is made not to re-open a claim (subsection (a)), or rejecting a claim as in the Applicant’s case with his previous claim (subsection (b)), or revoking a decision (subsection (c)), but not for a decision of an immigration officer refusing to allow a request to make a subsequent claim.

18.  In the present case of the Applicant, the obvious question for the Court to ask, therefore, was his non-refoulement claim made on his second illegal entry and stay in Hong Kong in 2018 in fact a subsequent claim? In order words, was the immigration officer correct to regard his claim, based on facts entirely different from his previous one and with a different source of threats, as a request to make a subsequent claim under Section 37ZO of the Ordinance with its limitations as noted above under subsection (2), including the requirement of the Applicant to provide sufficient evidence to satisfy the immigration officer that there had been a significant change of circumstances since his previous claim was finally determined, and that such change when taken together with the material previously submitted for the previous claim would give the subsequent claim a realistic prospect of success?

19.  On the wholly different facts for his present claim, I am unable to see how the Applicant could be expected in law to show there had been a significant change of circumstances when such claim has never been “finally determined or withdrawn”, or when taken together with his previous claim based on entirely different facts and when the source of threats was from his creditor and not the Vietnamese authorities, how would they give his present claim a realistic prospect of success?

20.  Furthermore, in determining a subsequent claim, Section 37ZP(3) of the Ordinance allows an immigration officer to take into account any finding of credibility or fact made by the Director or the Appeal Board in relation to the previous claim by the claimant making the subsequent claim, but given the wholly different facts relied on by the Applicant for his present claim, I fail to see how these provisions could fairly or reasonably be applied by the immigration officer in processing it as if it were a subsequent claim.

Conclusion         

21.  In the premises, and for the reasons given, I am of the view that it is reasonably arguable that the Director erred in law and/or was irrational to treat the Applicant’s claim as a subsequent claim or as a request to make a subsequent claim, thus meeting the threshold for leave to be granted to him to apply for judicial review of the Director’s decision as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.     

22.  Accordingly, I extend time and grant leave to the Applicant to do so on the ground stated above, and direct that he shall file an originating summons within 14 days, and to serve a copy thereof together with all the relevant documents on the Director as respondent.

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