TRINH QUOC HUNG v. DIRECTOR OF IMMIGRATION

HCAL 734/2022

[2026] HKCFI 2758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 734 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 8 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 July 2022 (the “2022 Notice”) refusing his request for making a subsequent claim (the “Request”).   

2.  The Applicant is a Vietnamese, aged 39.  He was arrested on 16 April 2014 for some immigration offences and referred to the Immigration Department.  He claimed to have left Vietnamon on 6 April 2014 and sneaked into Hong Kong from Mainland China on 15 April 2014.  On 14 April 2015, he lodged a claim for non-refoulement protection by written representation (the “previous claim”).  His previous claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s decision in his Notice of Decision dated 9 September 2016 (the “2016 Notice”) and Notice of Further Decision dated 30 March 2017 (the “2017 Notice”).  His appeals against the 2016 Notice and 2017 Notice were dismissed by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”).  He was removed back to Vietnam on 6 March 2018.  The Board’s Decision is now final and binding on the Applicant.

3.  On 7 May 2022, the Applicant was again arrested by the police for illegally remaining in Hong Kong.  He claimed to have left Vietnam on 25 March 2022 and sneaked into Hong Kong on 28 March 2022.  By a letter dated 10 May 2022, he made the Request.

The law

4.  Under the USM, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance.  The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The previous claim

5.  The Applicant’s previous claim was that if returned to Vietnam he would be harmed or killed by a moneylender for being unable to repay the loan he borrowed from the moneylender.  The immigration  officer who assessed his previous claim (the “previous case officer”) found in the 2016 Notice that the level of risk of harm from the moneylender was low and there was no evidence to suggest that he would face a genuine and substantial risk from the moneylender if he was to be returned to Vietnam.  He also found state protection and internal relocation were available to the Applicant to mitigate or avoid the risk of harm.  The Director’s decision in the 2016 Notice was upheld by the Board, which made similar findings.

The immigration officer’s finding in the intended subsequent claim

6.  In his Request, the Applicant claimed that upon his repatriation to Vietnam in 2018, his family sold his house and all his property to pay off the debt.  In February 2019, to rebuild his life, he borrowed one billion Vietnamese Dongs from another moneylender who is a notorious gangster with triad background (the “second moneylender”) to open a shop selling mobile phones.  His business failed with the outbreak of Covid-19.  He went bankrupt again.  Since May 2020, he was unable to repay the second moneylender.  In June 2020, the second moneylender with 15 to 20 gangsters came to his home to collect payment.  As the Applicant could not pay, they vandalised his home and brutally assaulted him until he fell unconscious.  His neighbour intervened and took him to the hospital for treatment.  He was hospitalised for two weeks.  He suffered no serious or life-threatening injuries. 

7.  Upon his discharge, he made a report to the police.  He was informed by an unknown police officer in the police station that as the second moneylender did not directly assault him and as he did not have enough evidence to prove that the other gangsters were the second moneylender’s subordinates, neither could he sue the second moneylender nor could the police prosecute the second moneylender.  The officer said the police would not take further action.  The Applicant thought the police could not help him.  He also learned that the second moneylender had a lot of close relationship with a few corrupt policemen.  He worried that if he pursued the second moneylender, he might be convicted for slandering the second moneylender. 

8.  As he could not find justice from the police, he relocated to Ho Chi Minh City in July 2020. He slept in the park at night and wandered in the street begging for food during the day.  He was not an active person and his health was not good.  He was not competitive and could not find job, especially because of the economic recession.

9.  One day in December 2021, he was confronted by five gangsters in the park claiming to be the second moneylender’s subordinates.  They cursed him, beat him and forced him to sign a consent form to donate his organs.  He struggled and cried for help.  Again, some passers-by rescued him.  As the gansters were leaving, they threatened to come back for him.  Out of fear, he fled to Hong Kong a second time.

10.  The Applicant produced a copy of a loan agreement dated 10 February 2019 between him and the second moneylender (“Document 1”), a copy of a screenshot showing threatening text messages allegedly from the new moneylender to the Applicant demanding payment (“Document 2”) and a flyer with the Applicant’s personal particulars and threatening words (“Document 3”). 

11.  The immigration officer seemingly assessed the Applicant’s claim on the basis of the case as he asserted in the Request.  Though the Applicant is claiming a new source of harm, the immigration officer found the nature of the new claim is same as that in his previous claim, ie a private monetary dispute with a moneylender.  The Applicant suffered two attacks.  As a result of the first attack, he was hospitalised for two weeks, but suffered no life threatening injuries.  As for the second attack, he did not find it necessary to seek medical treatment.  The immigration officer found the ill-treatment he suffered did not attain the minimum level of severity.  He found no evidence that the Vietnamese government was involved in the dispute or the ill-treatment of the Applicant or that the second moneylender was a government official or acting under the state authority or at the instigation or with the acquiescence of a public official or any person acting in an official capacity when inflicting the harm and administering the threat on the Applicant.  As the second moneylender’s gangsters were deterred by the Applicant’s neighbours or the passers‑by in the two attacks, the immigration officer found the second moneylender and his gangsters were not as powerful as the Applicant believed.  He therefore found there were no significant changes in circumstance since the Applicant’s previous claim was finally determined.

12.  Even assuming that the three documents submitted by the Applicant were authentic and true, the immigration officer found they could not advance the Applicant’s intended subsequent claim in that they together with the materials submitted in the previous claim would not give his intended subsequent claim any realistic prospect of success.  He also rejected the Applicant’s claim that state protection and internal relocation were not feasible options to mitigate or avoid the risk of harm as these issues had been determined in the previous claim and the Applicant had not provided any evidence about change in country conditions.  Hence, he refused the Applicant’s Request.

The legal principles applicable to judicial review

13.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[1].

Grounds for judicial review

14.  At the hearing, after the above legal principles had been explained to the Applicant, he confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision.  The grounds of application advanced by him in his Form 86 are that, if returned to Vietnam, he will be killed by the second moneylender and his gangsters because they are ruthless, cruel and violent.  This is a near replica of his claim as advanced in his Request which was summarized by the immigration officer in paragraph 9(m) and 9(n) of the 2022 Notice.  This claim was expanded by his duty lawyer in his submissions dated 30 June 2022 which was summarized in paragraphs 12(g) to 12(n) of the 2022 Notice.   All these claims and submissions had been considered by the immigration officer.  Apart from finding that the intended subsequent claim is of the same nature as the previous claim, he considered, in particular, the injuries suffered by the Applicant during the two attacks.  For the first attack, the Applicant was hospitalized for two weeks without need for medication or surgery.  For the second attack, the Applicant did not even consider it necessary to seek medical treatment.  Though the underlying reason was the Applicant’s lack of means, he recovered within two weeks.  The immigration officer therefore could not accept that the injuries attained the minimum level of severity.  Obviously, based on the Applicant’s past ill-treatment, he considered his risk of future harm is low. He further found that the second moneylender and his gangsters were not as influential and powerful as the Applicant claimed because they were deterred by the presence of the neighbours and passers-by.  On these findings the immigration officer rejected the Applicant’s claim that the moneylender’s gangsters were as cruel, violent and ferocious as the Applicant asserted in his ground of application.  He therefore came to the conclusion that the Applicant had failed to provide sufficient evidence to establish that there has been significant change of circumstances since his previous claim was determined. In effect, this ground of application is a direct challenge of the immigration officer’s finding of fact that there is no significant change of circumstance since the previous claim was finally determined.     This is impermissible save for errors of law, procedural unfairness or irrationality.  The Court will consider these issues in its overall scrutiny of the immigration officer’s decision in the 2022 Notice.

Overall scrutiny

15.  Having considered the Request, the Director’s 2017 Notice and the Board’s Decision and having also rigorously examined the 2022 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence.  

16.  The immigration officer observed a very high standard of fairness.  Upon receipt of his Request, he advised the Applicant of the procedures in making a subsequent claim and referred his Request to the Duty Lawyer Service (“DLS”).  Subsequently, the DLS acted for him and submitted further information and made submissions on his behalf.  The immigration officer acted fairly.  The Applicant could have no valid complaint about procedural unfairness in the immigration officer’s processing of his Request.

17.  In essence, the immigration officer found there was no significant change in circumstance since the previous claim was finally determined.  This is essentially a finding of fact. He further found even if there was, the change together with the materials submitted in the previous claim would not give his intended subsequent claim a realistic prospect of success.  This is a mixed finding of fact and of the law.  On the evidence as presented by the Applicant, it was open to the immigration officer to come to that conclusion.  Insofar as the immigration officer’s findings are finding of the law, they are absolutely correct.  Insofar as they are finding of fact, they are within the realm of the decision maker, ie the immigration officer acting on behalf of the Director, which the court in a judicial review may not intervene save for error of law, procedural unfairness or irrationality. This Court could detect no error of law in the 2022 Notice.  The 2022 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. 

Conclusion

18.  For the above reasons, the Applicant’s leave application is refused.

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