DINH THI DUYEN v. DIRECTOR OF IMMIGRATION

HCAL 1662/2020

[2025] HKCFI 3903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1662 OF 2020

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;

Leave to apply for judicial review be refused.

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 22 July 2020 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.

2.  The Applicant is a 54-year-old national of Vietnam who last entered Hong Kong illegally on 13 June 2015 and surrendered to the Immigration Department on 15 June 2015 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her unpaid debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 17 January 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 is no reliable 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 it was a private monetary dispute between her and her creditor 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 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 the country away from her home district in large cities such as Hanoi where it would be difficult if not impossible for her creditor to locate her.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 21 November 2018[1] after hearing her in evidence and submissions and upon finding that both state protection and reasonable internal relocation were available to her upon her return to Vietnam to negate any risk from her creditor that her claim and appeal failed on all applicable grounds, and that the Board also confirmed the Director’s decision.

6.  On 14 May 2019 the Applicant was convicted of the offences of breaching her condition of stay and a former removal order against her, and was sentenced to prison for 30 months.

Request To Make Subsequent Claim

7.  The Applicant never sought any legal challenge by way of judicial review of the Board’s decision, and some 1 ½ years later on 29 May 2020 she in writing to the Immigration Department requested to make a subsequent claim on the basis that she still fears of being harmed by the same creditor of her previous claim over her same debts as before if refouled to Vietnam.

8.  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.”

9.  Accordingly, the Director by a letter dated 16 June 2020 required the Applicant to provide further information and evidence in writing in support of her request within 14 days, but which she never did, nor was she able to do so at the subsequent interview conducted before an immigration officer.

10.  By a Notice of Decision dated 22 July 2020 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of her previous claim, and that she failed to provide any evidence in writing to satisfy an immigration officer that there has been 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 findings by the Director and the Board of the availability of both state protection and internal relocation to similarly negate the same risk that may arise from her intended subsequent claim.

11.  On 14 August 2020 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of a decision which she dated at 14 May 2019 but which according to the record simply does not exist, and given the Director’s subsequent confirmation that the Applicant has since absconded from her recognizance and disappeared without trace that it is not possible for the Court to make any enquiries with her about her intended challenge, I can only in the circumstances treat her leave application as one against the latest decision of the Director of 22 July 2020 refusing her request to make a subsequent claim in view of the close proximity in time, but no ground for relief was given in either her Form or her supporting affirmation of the same date, nor did she request any oral hearing for her application, not that it would matter given her present unknown whereabouts.

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, nor for that matter in the Board’s decision in the previous claim if indeed that was the Applicant’s true intention to challenge that decision, for the same reasons given above that her claimed risk of harm even if real was correctly found to be a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Vietnam that there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526, I am therefore not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse to grant leave and dismiss her 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