NGUYEN THI HA v. DIRECTOR OF IMMIGRATION

HCAL 1127/2021

[2021] HKCFI 2795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1127 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review 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 (“Director”) dated 13 July 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her earlier claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.  The Applicant is a 47-year-old national of Vietnam who first entered Hong Kong illegally on 1 August 2014 and was arrested by police on 5 August 2014.  After she was referred to the Immigration Department for investigation, 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 outstanding loan obtained earlier for her inn business and/or by her husband who blamed her for the threats and harassments caused to the family due to her debts problem.

Previous Non-Refoulement Claim       

3.  By a Notice of Decision dated 29 August 2016 and a Notice of Further Decision dated 20 December 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 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 decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be harmed or killed by her creditor or her husband upon her return to Vietnam due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm her other than to put pressure on her to repay her loan or of her husband other than his frustration due to her debts problem, that in any event it was a private monetary or domestic 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 310,000 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 Vietnam away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor or her husband to locate her.

5.  The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 30 August 2018 after hearing her in evidence and submissions and upon finding no merits in her claim or her appeal, and that it also confirmed the Director’s decisions.

6.  The Applicant did not bring any legal challenge against the Board’s decision by way of judicial review, and hence her non-refoulement claim was treated as having been finally determined and disposed of by the Board, and on 20 November 2018 she was repatriated to Vietnam.

Request To Make Subsequent Claim

7.  On 5 February 2021 the Applicant again entered Hong Kong illegally and was arrested by police on 5 May 2021.  After she was referred to the Immigration Department for investigation, she on 18 May 2021 in writing requested to make a subsequent claim on the basis that upon her return to Vietnam in 2018, she still faced threats from her creditor over her previous loan, and so she borrowed another loan from a different money-lender to open a restaurant in the hope of earning enough money to repay both loans, but later her restaurant business failed and when her creditors threatened her again over her outstanding loans, she therefore fled from Vietnam for Hong Kong as she feared of being harmed or killed by either of them 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, on 26 May 2021 and 10 June 2021 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did on 30 June 2021 by providing her evidence and information in support of her request to make a subsequent claim.

10.  By a Notice of Decision dated 13 July 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 her previous claim, and that she failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success.

11.  On 11 August 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in either her Form or her supporting affirmation filed on the same day, nor did she request any oral hearing for her application.  As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

12.  Even on the basis of the Applicant’s own case, the Director was in my view correct to find her alleged borrowing from another creditor for a restaurant business and her subsequent failure to make her loan repayment led to threats from both of her creditors did not amount to a significant change of circumstances since her previous claim had been finally determined, or that such change when taken together with the material previously submitted for her previous claim would give the subsequent claim any realistic prospect of success upon taking into account of the findings in the previous claim of the availability of state/police protection and reasonable internal relocation available to the Applicant upon her return to Vietnam to avoid or negate her subsequent claim as the Director was entitled to do so under Section 37ZO(3) of the Immigration Ordinance.    

13.  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, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse her leave application.

Restricted Proceedings Order

14.  Given the fact that her non-refoulement claim had already been previously determined under the Unified Screening Mechanism (“USM”), and that it appears that the Applicant is trying to re-litigate her case by making this subsequent claim based essentially on the same facts and basis as before, I did take into consideration whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against her, but as she had never sought any legal challenge by way of judicial review or appeal in her previous claim, and as I cannot say with certainty on the facts of this request of hers for a subsequent claim is an abuse of process, I shall refrain from making such an order against her on this occasion.

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