VU DINH PHUONG v. DIRECTOR OF IMMIGRATION

HCAL 326/2023

[2023] HKCFI 1398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 326 OF 2023

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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 16 June 2022 be refused; and

2.  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 16 June 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had earlier been rejected by the Director under the Unified Screening Mechanism (“USM”) on all the applicable grounds, while his appeal to the Torture Claims Appeal Board (“the Board”) was subsequently withdrawn whereupon he was repatriated to his home country in December 2017, but more than 4 years later in January 2022 he again entered Hong Kong illegally, and upon his arrest by the police he then requested to make a subsequent claim but was refused by the Director.

2.  The Applicant is a 47-year-old national of Vietnam who first entered Hong Kong illegally on 12 April 2014 and was arrested by police on 16 July 2014 for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim to the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 6 October 2015 and a Notice of Further Decision dated 7 November 2016 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”).

4.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him for repayment of his loan, that in any event it was a private monetary dispute between them 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 of 94 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 the country away from his home district in large cities such as Hanoi or Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

5.  The Applicant’s appeal against the Director’s decisions was subsequently withdrawn by his written representation dated 8 August 2017 that his family had settled his debts on his behalf and hence he no longer had any problem returning to his home country, and accordingly on 24 December 2017 he was repatriated to Vietnam.

Request To Make Subsequent Claim

6.  More than 4 years later on 15 January 2022 the Applicant unlawfully entered Hong Kong again, and was arrested by police on 16 February 2022, and while being remanded in the Lai Chi Kok Reception Centre, the Applicant by a letter dated 28 March 2022 to the Immigration Department requested to make a subsequent claim on the basis that if refouled to Vietnam he would be harmed or killed by his new creditor over another loan borrowed for his new business after his repatriation to his 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, on 11 May 2022 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”).

9.  The Applicant’s case is that upon returning to Vietnam in 2017, he was looking for business opportunity in his home district, and in August 2018 he started a seafood eatery at Commune Luu Kiem with the help of a loan borrowed from a local money-lender with monthly interest payments until discharge of the loan.

10.  For the first 2 years he managed to make his monthly interest payments to his creditor, but in July 2020 he defaulted with the payments due to deterioration of his eatery business caused by the Covid-19 pandemic that his creditor started to come with his followers to threaten him, and that on one such occasion he was beaten with wooden sticks and suffered serious injuries to his arms and shoulders that he was hospitalized for 2 weeks.

11.  Upon discharge from hospital, the Applicant became fearful for his life and fled to Thanh Hoa Province to take shelter in a friend’s place, and in January 2022 he departed Vietnam for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then requested to make a subsequent claim on the basis that if refouled to Vietnam he would be harmed or killed by his creditor over his unpaid debts.

12.  By a Notice of Decision dated 16 June 2022 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof, i.e. risk arising from a private monetary dispute between him and his creditor was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given that any risk arising from the same private dispute with his creditor without any official involvement will be similarly negated by the availability of state/police protection and internal relocation to the Applicant upon his return to Vietnam as found in his previous claim.

13.  On 2 March 2023 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 his Form, and in his supporting affirmation filed on the same day he just stated that he does not agree with the decision but without providing any further details or particulars or elaboration as to why or put forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

14.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the 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 date 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.

15.  As the last day of the 3-month period for him to file his Form 86 fell on 16 September 2022, the Applicant was therefore almost 6 months 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.

16.  In the Applicant’s case, a delay of almost 6 months must be considered as substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the Director’s decision was sent on the same day of 16 June 2022 to his lawyer from DLS without being returned through undelivered post, I do not see any good or valid reason for his such serious delay.

17.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge either. As such I do not find any merits in his intended application either.

18.  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 for subsequent claim given its similar nature and factual basis as that of his previous claim and which the Director has again rightly found to be also negated by the availability of state protection and internal relocation as before in his previous claim, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave 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