VU THI THU HANG v. DIRECTOR OF IMMIGRATION

HCAL 861/2022

[2024] HKCFI 1686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 861 OF 2022

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;

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 30 June 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all the applicable grounds and that her subsequent appeal was then withdrawn and dismissed by the Torture Claims Appeal Board (“the Board”) at her own request in writing of her wish to return to her home country.   

2.  The Applicant is a 42-year-old national of Vietnam who entered Hong Kong illegally on 1 July 2014 and surrendered to the Immigration Department on 31 July 2014 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 15 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 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 evidence of any real intention of them 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 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 Ho Chi Minh City 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 subsequently withdrawn and dismissed by the Board on 28 December 2018 at her own request in writing of her wish to return to her home country whereupon she was repatriated to Vietnam.

Request To Make Subsequent Claim

6.  More than 3 years later on 10 February 2022 the Applicant sneaked back into Hong Kong, and on 24 February 2022 she surrendered to the police, and after she was referred to the Immigration department for investigation, she in writing requested to make a subsequent claim on the basis that upon her repatriation to Vietnam in December 2018, as she was still unable to repay her debts to her creditor and was afraid to return to her home village, she therefore took shelter in her aunt’s home in a neighbouring village, but her whereabouts was subsequently discovered by her creditor in 2019 who then sent men to beat her and also threatened her parents, and so the Applicant fled from her aunt’s home to Lang Son City, but in February 2022 she was located by her creditor who then threatened to kill her if she still failed to repay her debts, and so she departed Vietnam again on 6 February 2022 for China, and from there she later sneaked into Hong Kong and raised her request to make a subsequent claim on the same basis.       

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 21 April 2022 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 via her lawyer from Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 30 June 2022 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 given the unchallenged finding in her previous claim of the availability of state protection and reasonable internal relocation to negate such risk of her subsequent claim upon her return to Vietnam.

10.  On 31 August 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no proper ground for seeking relief was given in her Form or in her supporting affirmation filed on the same day other than a regurgitation of her claim as before and some bare assertions that the Director’s decision to refuse her claim was wrong as she would not be able to adapt if she were to relocate to other part of Vietnam and that her creditor would have nationwide network to locate her anywhere but without providing any relevant or necessary details or particulars or elaboration to corroborate her such bare assertions.  

11.  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, I am therefore not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review.

12.  Moreover, the Applicant on 6 December 2023 in writing requested to withdraw her application as her problem in Vietnam has been resolved that she would like to return to her home country as soon as possible, and whereupon on 27 February 2024 she was repatriated to Vietnam.

13.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the intended application of the Applicant, and in view of her latest confirmation of no more problem for her to return to her home country and which she subsequently did, I accordingly 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