VU THI THANH HUYEN v. DIRECTOR OF IMMIGRATION

HCAL 1830/2020

[2025] HKCFI 2818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1830 OF 2020

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 20 July 2020 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claims had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all applicable grounds, and of which she never brought any appeal to the Torture Claims Appeal Board (“Board”).   

2.  The Applicant is a 52-year-old national of Vietnam who first entered Hong Kong illegally on 26 August 2015 and was arrested by police on 27 September 2015.  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 unpaid debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 19 July 2017 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 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 reliable evidence of any real intention of her creditor 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 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 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 thereafter never brought any appeal to the Board against the Director’s decision, and was subsequently repatriated to Vietnam on 31 July 2018.

Request To Make Subsequent Claim

6.  Almost 2 years later on 25 May 2020 the Applicant sneaked back into Hong Kong, and upon her arrest by the police she in writing to the Immigration Department on 10 June 2020 requested to make a subsequent claim on the basis that upon her repatriation to Vietnam in July 2018 she still faced threats from her creditor over her outstanding debts that she fears of being harmed or killed if refouled to Vietnam. 

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, the Applicant was interviewed by an immigration officer on 30 June 2020, and upon ascertaining from her that her claimed risk is from the same creditor as in her previous claim, the Director by a letter dated 30 June 2020 required the Applicant to provide further information and evidence in writing in support of her request within 14 days to show that there has been a significant change of circumstances since her previous claim was determined, and that such change when taken together with the material previously submitted in support of her previous claim would give her intended subsequent claim a realistic prospect of success, but which she subsequently never did, nor did she request any legal representation for her request.  

9.  By a Notice of Decision dated 20 July 2020 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof is exactly the same as that of her previous claim, and that she failed to provide any evidence in writing to satisfy an immigration officer that there has been any 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 internal relocation to similarly negate any such risk that may arise from her intended subsequent claim.

10.  On 14 September 2020 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 relief was given in her Form or supporting affirmation of the same date, nor did she request any oral hearing for her application.

11.  Given the fact that the Applicant had been given an interview by an immigration officer for her request during which she was fully advised of what she needed to do to support her request to make a subsequent claim but she still failed to do so at all, and as it had already been established by the Director that the risk of harm in her previous claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, of which she never brought any appeal to the Board, and given that the basis of her intended subsequent claim is essentially the same or similar as before, I am unable to see any justification at all in her request to make her subsequent claim.  

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 therefore refuse to grant leave and accordingly dismiss her 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