TRAN THI HANG v. DIRECTOR OF IMMIGRATION

HCAL 733/2022

[2025] HKCFI 232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 733 OF 2022

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

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 July 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claims had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all the applicable grounds and that her subsequent appeal to the Torture Claims Appeal Board (“the Board”) was withdrawn at her own request.

2.  The Applicant is a 40-years-old national of Vietnam who previously entered Hong Kong illegally on 21 September 2015 and raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her outstanding debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 12 May 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 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 there was no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event 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 spread across a vast territory 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 where it would be difficult if not impossible for her creditor to locate her.

5.  The Applicant then lodged an appeal to the Board against the Director’s decision, but it was subsequently dismissed by the Board on 14 September 2017 at her own request to withdraw her appeal upon her confirmation that her problem had been resolved that it was safe for her to return to her home country, and accordingly on 15 September 2017 the Applicant was repatriated to Vietnam.

Request To Make Subsequent Claim

6.  More than 4 years later on 16 November 2021 the Applicant sneaked back into Hong Kong, and upon her subsequent arrest by the police on 28 February 2022 and was referred to the Immigration Department for investigation, she requested to make a subsequent claim on the basis that if refouled to Vietnam she would be harmed or killed by another creditor over her new debts incurred since her repatriation to her home country in 2017.

7.  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.”

8.  Accordingly, the Director on 11 March 2022 required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did in a letter dated 1 April 2022 in which she asserted that upon returning to Vietnam in 2017, she was able to pay off her debts in her previous claim with the help of her family, and in order to make her own living in her home town she borrowed another loan from another money-lender to run a restaurant, and from her business income she managed to repay her loan by monthly instalments with interests, but in 2019 her business had been badly affected by the Covid-19 pandemic that by October 2021 she was unable to repay her debts, and after being threatened by her creditor, she again departed Vietnam in November 2021 and came to Hong Kong to seek non-refoulement protection.

9.  By a Notice of Decision dated 26 July 2022 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis of fear of harm from another creditor over her new debts was essentially the same or of the same private nature as that of her previous claim albeit from a different creditor that it was not accepted as any significant change of circumstances since her previous claim was determined, or that such change 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 unchallenged finding by the Director in her previous claim that any risk arose from such a private monetary dispute between the Applicant and her creditor without any official involvement would be negated by state protection and reasonable internal relocation within the country will also similarly be available to the Applicant to negate any similar risk which may arise from her intended subsequent claim.

10.  On 8 August 2022 the Applicant 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 her Form or supporting affirmation of the same date when in both documents she merely repeated her intended subsequent claim as before but without putting forth any proper ground for her intended challenge of the Director’s decision.

11.  Moreover, on 15 November 2024 the Applicant as in her previous claim filed an affirmation requesting to withdraw her leave application by asserting that it is now safe for her to return to her home country but without providing any further details or explanation as to what has happened to her claimed risk.

12.  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 refuse to grant leave and accordingly dismiss her application.

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