PHAM VAN THAI v. DIRECTOR OF IMMIGRATION

HCAL 661/2021

[2025] HKCFI 5870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 661 OF 2021

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 9 April 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his 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 52-year-old national of Vietnam who first entered Hong Kong illegally on 18 September 2015 and surrendered to the Immigration Department on 21 September 2015 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 12 January 2018 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 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 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 reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his 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 96 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 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 decision was then dismissed by the Board on 25 March 2019 after finding no merits in his claim or appeal, and that it also confirmed the Director’s decision upon also finding that both state protection and internal relocation would be available to the Applicant to negate his alleged risk that may arise from his private monetary dispute with his creditor upon his return to Vietnam.

6.  The Applicant never sought leave from the court to apply for judicial review of the Board’s decision, and was instead arrested by police for possession of a faked identity card and undertaking unauthorized employment whilst being released on recognizance pending the determination of his claim, and for which he was subsequently convicted and sentenced to prison for 18 months, and upon his discharge from prison he was repatriated on 13 June 2019 to Vietnam.

Request To Make Subsequent Claim

7.  However, some 10 months later on 14 April 2020 the Applicant sneaked back into Hong Kong, and more than 7 months later on 24 November 2020 he surrendered to the Immigration Department and requested to make a subsequent claim on the basis that after returning to Vietnam in 2019, he borrowed another loan from another money-lender to start a business selling clothes, but which turned out to be unsuccessful and was eventually closed down, and when he was unable to repay his loan, he was again threatened and assaulted by men sent by this creditor, and in order to save his own life he therefore departed Vietnam again in April 2020 to come to Hong Kong to again seek non-refoulement protection.

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 required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did by letters dated 9 March 2021 and 16 March 2021 in which he just repeated his request to make a subsequent claim on the basis as noted above.

10.  By a Notice of Decision dated 9 April 2021, 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 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 the unchallenged findings by both the Director and the Board in his previous claim of the availability of both state protection and internal relocation alternatives to the Applicant upon his return to Vietnam to similarly negate whatever risk that may arise from his intended subsequent claim which on the factual basis of even his own case is yet another private monetary dispute between him and his creditor only without any state or official involvement as in his previous claim.

11.  On 10 May 2021, 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 or supporting affirmation of the same date in which he just asserted that he does not agree with the decision as unfair and unjust but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

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 his 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