TRINH THI HONG THU v. DIRECTOR OF IMMIGRATION

HCAL 151/2021

[2021] HKCFI 1053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 151 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:

1.  The Applicant is a 42-year-old national of Vietnam who had previously entered Hong Kong illegally and raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her loan, but her claim was subsequently rejected by the Director of Immigration on 10 March 2017 upon finding that state/police protection would be available to her as well as reasonable internal relocation for her to move to other parts of Vietnam away from her home district without any risk of being located by her creditor, of which she did not lodge any appeal to the Torture Claims Appeal Board (“Board”), and as a result she was repatriated to Vietnam on 11 April 2018.

2.  After returning to Vietnam, she however returned to her home district where she was again threatened by her creditor over her outstanding loan, and as she was still unable to repay her loan, and fearing for her life, she departed Vietnam again in late 2020 for China, and from there she again sneaked into Hong Kong, and upon her arrest by police on 17 November 2020, she requested to make a subsequent claim on the same basis as before that she would be harmed or killed by her creditor for failing to repay her loan.  

3.  Section 37ZO of Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) provides that a person who has previously made a torture claim must not subsequently make another torture claim except as stipulated in the following subsections:

“(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(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and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.  By a Notice of Decision dated 29 January 2021 the Director refused the Applicant’s request to make a subsequent claim upon finding that her alleged threats from her creditor upon her return to Vietnam do not constitute any significant change of circumstances warranting the making of a subsequent claim, and that on the basis of the findings by an immigration officer in her previous claim as to the availability of state protection and reasonable internal relocation to her with no suggestion of any change of circumstances in these aspects since her previous claim it was finally determined that it is not accepted that her subsequent claim would have any realistic prospect of success.     

5.  As section 37ZR of the Ordinance does not provide avenue for appeal to the Board against such a decision of the Director in refusing a request to make a subsequent claim, the Applicant on 11 February 2021 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 her Form or in her supporting affirmation of the same date, 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 his decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

6.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

7.  In the Applicant’s case, the Director has in my judgment correctly found even on her own case at the highest that the new information disclosed by her for her subsequent claim is wholly premised on her previous dispute with her creditor over her outstanding loan which had already been properly dealt with before by the Director, and that it does not constitute any significant change of circumstances that justify a subsequent claim, nor would it give the subsequent claim any realistic prospect of success. as it has been clearly established by the Director in his earlier decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526, or for her to make a subsequent claim on the same basis.     

8.  In the premises and having considered both decisions of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on his part to apply high standards of fairness in his consideration and assessment of the Applicant’s claim.

9.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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