LE VAN DONG v. DIRECTOR OF IMMIGRATION

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 3 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 July 2022 (the “Notice”) refusing his request to make a subsequent claim (the “Request”).  

2.  The Applicant is a Vietnamese national, aged 50.  He first sneaked into Hong Kong in December 2015.  He was arrested and removed back to Vietnam on 11 March 2016.  On 2 October 2016, he was arrested entering Hong Kong illegally.  On 23 January 2017, he lodged a non‑refoulement claim (the “previous claim”).  By a Notice of Decision dated 6 October 2017, the Director rejected his claim on all four applicable grounds under the Unified Screening Mechanism (“USM”).  His appeal was dismissed by the Torture Claims Appeal Board/Non‑refoulement Petitions Office (the “Board”).  He was subsequently removed back to Vietnam on 7 August 2018.

3.  Then, the Applicant sneaked into Hong Kong a third time on 12 February 2022.  He was arrested on 21 February 2022 and made the Request by letter which was received by the Immigration Department on 16 March 2022.  By a letter dated 6 April 2022, an immigration officer informed the Applicant of the requirement for making a subsequent claim, his right to legal representation and the availability of the public-funded legal assistance provided by the Duty Lawyer Service.  He was requested to provide further information and evidence in support of his Request by 20 April 2022.  On 22 April 2022, the immigration officer received the Applicant’s reply.  The gist of his intended subsequent claim is that if returned to Vietnam he will be harmed or killed by his previous moneylender and the new moneylender for being unable to repay his debts owed to them.  Having assessed his information, including the documents he submitted, the immigration officer issued the 2022 Notice on behalf of the Director to refuse his Request for making a subsequent claim.  The Applicant now seeks leave to apply for judicial review of that 2022 Notice.

The previous claim

4.  The Applicant’s personal background, the factual background leading to his previous claim, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims, if returned to Vietnam, he will be harmed or killed by his previous moneylender for being unable to repay a debt owing to the previous moneylender. 

5.  The immigration officer who assessed his previous claim (the “previous case officer”) found the Applicant’s dispute with the previous moneylender was private in nature, that the ill-treatment he received from the previous moneylender did not attained the minimum level of severity and that the moneylender had no real intention to seriously harm or kill him.  He found state protection was available and rejected the Applicant’s allegation that his previous moneylender could locate him anywhere in Vietnam. He assessed the risk of harm to the Applicant upon his return to Vietnam to be low.

6.  The Board did not accept the Applicant’s evidence about existence of the loan and the various debt collecting incidents.  Even assuming the assertions in his case were true, the Board found the Applicant’s fear was not imminent, the ill-treatment on the Applicant did not attain the minimum level of severity, the government was not involved in ill-treating the Applicant and that there was no indication that the previous moneylender and his underlings were public officials or acting in any official capacity in ill-treating the Applicant.  It found the Vietnamese authorities did take action against unlawful debt collection activities and state protection was available in Vietnam.  It found it was the Applicant’s own volition not to seek state protection and not that the authorities were unwilling or incapable of protecting him.   It also found it was not unduly harsh for the Applicant to relocate to other cities or area in Vietnam to avoid the risk of harm.

The intended subsequent claim

7.  The Applicant said that upon his return to Vietnam in August 2018, he sold his house and properties to pay his debt owed to the previous moneylender.  He was not able to repay all his debt. The previous moneylender forced him to sign another agreement acknowledging that he had to pay the previous moneylender 10,000 Vietnamese Dongs for every one million Dongs outstanding.  Then, in June 2019, he used his identity card to borrow two billion Dongs from the new moneylender to raise clams and geoducks. The new moneylender was a notorious gangster.  However, suddenly the government banned his business and he suffered huge losses.  Following the outbreak of Covid-19, the economy declined, he could not repay his new moneylender.  The new moneylender continuously sent subordinates to his mother’s home where he was staying to demand payment.  In March 2021, they came and assaulted his family members.  His nephew tried to reconcile with them, but was attacked.  The Applicant’s family reported the incident to the police.  The police said that they could not help and as he and his nephew had assaulted the new moneylender and his subordinates the police had sufficient evidence to prosecute them.  Thereafter, the Applicant continued to receive threats from his new moneylender’s subordinates by text messages and calls.  Out of fear and confusion, the Applicant fled to Mong Cai and then to Mainland China.  His nephew was summoned to trial in April 2021 and is now serving his sentence.

The immigration officer’s finding in the 2022 Notice

8.  The immigration officer considered his Request on all available information he submitted, finding of the previous case officer and the finding of the Board in the previous claim.  He took the view that the new debt in the intended subsequent claim is of the same nature as the one in the previous claim which had been considered and rejected by the previous case officer and the Board in the previous claim.  Even accepting his allegation about the assaults by the new moneylender and his subordinates, the Applicant was safe while he was relocated to Mong Cai which showed that his new moneylender was not as influential and powerful as he claimed.  More importantly, the immigration officer found as in the previous claim that there is no evidence that his new moneylender and his subordinates were government officials or acting under the state authority or at the instigation of or with the acquiescence of a public official or any person acting in an official capacity when they inflicted the harm and ill-treatment on him.  The immigration officer found he had not provided sufficient evidence to establish that there had been a significant change of circumstances since his previous claim was finally determined.

9.  The Applicant produced two documents evidencing his nephew serving 26 months’ sentence for disturbance of public order.  The documents also evidenced a deduction of for a pre-trial period of remand and detention from 20 April 2020 to 3 July 2020.  On the Applicant’s claim, the assault by the new moneylender’s subordinates which led to his nephew’s prosecution and imprisonment took place in March 2021, almost a year before the pre‑trial detention.  The immigration officer found the prosecution and imprisonment were not related to the alleged assault.  The immigration officer also noted the absence of credible evidence to indicate the Vietnamese police was attempting to locate the Applicant’s whereabouts to arrest him and the absence of a logical basis for believing that he would be an adverse target of the Vietnamese government. 

10.  The Applicant produced two screenshots of undated text conversation with the chat box named “Thang Ha” and “Dong Le”.  Assuming that the conversations related to the Applicant, put at the highest, they only evidenced a verbal threat from the new moneylender to the Applicant through his son.  The immigration officer found the evidence could not advance his Request any further. 

11.  Finally, even assuming that the alleged fears exist, it had already been considered in the previous claim that reasonable state protection and internal relocation options are available to reduce or avoid the perceived risk.  In the totality of the evidence and the absence of evidence indicating a change in country of origin information, the immigration officer was not satisfied that there was a significant change of circumstance since the Applicant’s previous claim was finally determined which together with the materials submitted in the previous claim would give his intended subsequent a realistic prospect of success.  Hence, he issued the 2022 Notice on behalf of the Director to refuse his Request.

Legal principles applicable to judicial review

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

13.  In his Form 86, the Applicant submitted that if returned to Vietnam, his life will be seriously threatened.  He will be tortured, beaten or even killed because the gangsters in Vietnam are cruel and violent.  The gangsters disregarded the law and were willing to kill to satisfy their anger and ferocity.  This is a direct challenge of the immigration officer’s finding in relation to the Request and the Board’s finding of fact in the previous claim that his life would not be at risk of any of the proscribed harm, if returned to Vietnam.  That is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision.

14.  At the hearing after the legal principles in the preceding section had been explained to him, the Applicant confirmed that he had no complaint about errors of law, procedural unfairness and irrationality in the decision in the 2022 Notice.  He asked the Court to re-consider his claim and allow him to stay in Hong Kong until his issues in Vietnam are resolved.  These are not valid grounds of application for judicial review.  In fact, the Court has no jurisdiction to re-consider his non-refoulement application or to grant such relief.  In the absence of any arguable grounds or grounds with sufficient particulars, the Court could only focus its attention on errors of law, procedural unfairness or irrationality in the decision sought to be reviewed.

Overall scrutiny

15.  Having considered the Request, the 2017 Notice and the Board’s Decision in the previous claim and having rigorously examined the 2022 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence.  The immigration officer observed a very high standard of fairness. He advised the Applicant on the law and procedure in prosecuting his Request and referred his claim to the Duty Lawyer Service for legal assistance. 

16.  He assessed the Applicant’s intended subsequent claim on the basis of the information he provided.  He accepted that the Applicant had pleaded a new source of harm, but found the nature of his new source of harm was the same as that considered in the previous claim.  He rejected the Applicant’s evidence about the prosecution of his nephew for assault of the new moneylender’s subordinate.  He gave cogent reasons for his finding.  The Applicant provided no evidence about his own prosecution.  The immigration officer found he was not subject to any adverse interest of the Vietnamese government. 

17.  Even putting his evidence at its highest and accepting that he had a real fear of harm, the immigration officer found, as did the previous case officer and the Board in the previous claim, that the Applicant could access state protection and internal relocation to reduce or avoid the risk of harm.  Accordingly, he found there was no evidence or information which suggest that there has been a significant change in circumstance since his previous claim was finally determined and that the change taken together with the material previously submitted in support of his previous claim, would give his intended subsequent claim a realistic prospect of success.  These are finding of facts which are exclusively within the province of the Director to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  On the evidence, it was open to the immigration officer to make the finding as he did. This Court could detect no error of law in the 2022 Notice.  The 2022 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. 

Conclusion

18.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his Notice of Decision is refused.

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