NGUYEN THI HONG 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 19 September 2019 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 24 September 2019 (the “2019 Notice”) refusing her request to make a subsequent claim (the “Request”).   

2.  The Applicant is a Vietnamese, aged 41.  On 25 June 2015, she lodged a claim for non-refoulement protection by written representation (the “previous claim”).  Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s decision in his Notice of Decision dated 21 September 2017 (the “2017 Notice”).  She appealed the Director’s decisions in the 2017 Notice, but withdrew it before it was heard.  She was repatriated back to Vietnam on 26 March 2018.  In the circumstances, the Director’s finding in the 2017 Notice is final and binding on her.  Then, she sneaked into Hong Kong from Mainland China in October 2018.  On 19 August 2019, she made the Request.

The law

3.  Under the USM, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance.  The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The previous claim

4.  The Applicant’s previous claim was that she had borrowed money from a moneylender to pay her gambling debt.  She was unable to repay and was attacked several times by the moneylender and his underlings. Hence, she fled to Hong Kong and made the previous claim.

The procedural history

5.  On receipt of the Request, the immigration officer sent her a letter on 29 August 2019 informing the Applicant of the requirement under section 37ZO and requesting more information from the Applicant in support of her Request.  However, the Applicant did not respond.  On 10 September 2019, the immigration officer with a Vietnamese speaking interpreter visited the Applicant in Castle Peak Bay Immigration Centre and invited her to provide more information.  The Applicant claimed that she had not received the officer’s letter dated 29 August 2019. The officer reissued the letter and went through it with the Applicant with the assistance of the interpreter.  After the explanation, the Applicant indicated that she understood the content of the officer’s letter dated 29 August 2019. She said she had no intention to seek legal representation by the Duty Lawyer Service and would provide more information with the help of the interpreter the same day.  Subsequently, the Applicant submitted a letter on the same day in support of her Request.

The intended subsequent claim and the immigration officer’s decision in the 2019 Notice

6.  In her Request dated 19 August 2019 and her letter dated 10 September 2019, the Applicant alleged that she had returned to her home after her repatriation on 26 March 2018.  The moneylender learned about her return and visited her to demand repayment of her debt.  On some of the visits, she was beaten up by the moneylender’s men.  She obtained extension of time to pay.  When she came to realise that she was unable to pay, she fled and sneaked into Hong Kong again.  She said nothing eventful happened to her family.

7.  On the fact, the immigration officer found the Applicant had not provided any sufficient evidence in writing to satisfy him that there has been a significant change of circumstances since the previous claim was finally determined and 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.  Hence, he issued the 2019 Notice on behalf of the Director to refuse her Request.

The legal principles applicable to judicial review

8.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [1].

Grounds for judicial review

9.  The Applicant did not advance any grounds for judicial review in her Form 86.  In the absence of any particularized grounds of application, the court in a judicial review could only focus on errors of law procedural unfairness or irrationality in the decision in the 2019 Notice in its overall scrutiny of the 2019 Notice.

Overall scrutiny

10.  Having considered the Request, the Director’s 2017 Notice and having rigorously examined the 2019 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.  In essence, the immigration officer found there was no significant change in circumstances since the previous claim was finally determined.  This is essentially a finding of fact.  On the evidence as presented by the Applicant, it was open to the immigration officer to come to that conclusion.  It must then necessarily follow that there was nothing in her Request which would give the intended subsequent claim a realistic prospect of success.  This is a finding of fact solely for the decision maker, which the Court in an application for judicial review may not interfere. 

11.  The immigration officer observed a very high standard of fairness.  When the Applicant did not respond to his letter of 29 August 2019, he visited her with an interpreter.  When she claimed she had not received his letter, he reissued it and had it explained to the Applicant in Vietnamese.  The letter contained information on the requirements in making a subsequent claim and in seeking legal representation.  After the letter had been explained to her, she confirmed that she did not need legal assistance.  Then, with the help of the interpreter, she provided the information that she wished to rely on in support of her subsequent claim.   She could have no valid complaint about procedural unfairness in the immigration officer’s processing of her Request.

12.  This Court could detect no error of law in the 2019 Notice.  The 2019 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

13.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2019 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