TRAN QUANG THANH v. DIRECTOR OF IMMIGRATION

HCAL 74/2021

[2021] HKCFI 2927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 74 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 the Applicant 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 12 January 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his earlier claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all applicable grounds but without any appeal being brought by him to the Torture Claims Appeal Board (“Board”).   

2.  The Applicant is a 50-year-old national of Vietnam who had repeatedly entered Hong Kong illegally since 1989, during which he had been charged, convicted and sentenced to prisons for various offences ranging from theft to possession of forged identity documents before being deported upon discharge from prison on each occasion, and after his last illegal entry on 6 April 2016 and his subsequent surrender to the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his debts.

Previous Non-Refoulement Claim       

3.  By a Notice of Decision dated 31 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 his creditor upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from his creditor, that it was a private monetary 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 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 Vietnam away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

5.  The Applicant never brought any appeal against the Director’s decision to the Board, and on 28 September 2017 he failed to report on his recognizance and disappeared for the next 3 years until 5 September 2020 when he was arrested by the police.

Request to Make Subsequent Claim

6.  While being detained at Lai Chi Kok Reception Centre pending police investigation and prosecution, the Applicant by a letter dated 23 October 2020 to the Immigration Department via his lawyer requested to make a subsequent claim on the basis that he still fears being killed by his creditor 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 on 30 October 2020 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, but for which the Applicant’s lawyer kept requesting for extension of time up to 12 March 2021 as the Applicant was said to be still waiting for a medical report from the Correctional Services Department which he believed would assist his case regarding his claimed injuries sustained from attack by his creditor before his escape from Vietnam, but for which the Director was only prepared to extend up to 6 January 2021. Eventually the Applicant submitted additional information including a copy of the loan agreement in support of his loan dispute with his creditor, but no medical report has ever been submitted to the Director.

9.  By a Notice of Decision dated 12 January 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 his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

10.  On 22 January 2021 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and for his proposed grounds for his intended challenge, he stated as follows in the Form:

“10. The Director of Immigration was wrong in refusing my request for extension of time for submitting supporting documents and information. In the Notice of Decision dated 31 July 2017, the Director of Immigration said that my injuries sustained in Vietnam did not attain the minimum level of severity. In the Notice of Decision dated 12 January 2021, the Director of Immigration fully adopted this. My medical report from the hospital of Lai Chi Kok Reception likely contains information concerning my health including the physical conditions of my body, and hence would likely be relevant to the severity of my injuries sustained in Vietnam. Such medical report is likely to rebut the Director of Immigration’s claim that my injuries were not serious enough. It is very unfair for the Director of Immigration to refuse my request for extension of time and also my request for raising a subsequent claim.

11. In the Notice of Decision dated 12 January 2021, the Director of Immigration fully adopted his previous assessment of the relevant country conditions of Vietnam in the Notice of Decision dated 31 July 2017. When refusing my request for making a subsequent claim, he did not consider the latest relevant country conditions. He could not rely on an outdated assessment (which was also wrong) to assess my request for making a subsequent claim.”   

11.  The Applicant’s complaint under the first ground appears to be one based on procedural unfairness on the part of the Director, but even up to now in his application before me the Applicant has not produced any medical report which he claimed to have been waiting from the hospital at the time of his request to the Director for the subsequent claim. As stated by the Director in paragraph 17 of his decision, it seems to me ample time and sufficient opportunities have been given to the Applicant to provide all the necessary information in support of his request, and that further clarifications have also been made with him during his screening interview with his legal representation for his request to make a subsequent claim. As such and in the absence of any further medical or other evidence from him, I do not find any basis for his complaint of procedural unfairness in his process before the Director for his subsequent claim.     

12.  In any event, even on his own case, that medical report at most may only serve to rebut the Director’s assessment in his previous decision of the severity of the Applicant’s injuries allegedly sustained back in 2016 prior to his departure of Vietnam, but would not in my judgment have assisted or advanced his claim given the facts that the Director never disputed his claim of threats from his creditor arising from their loan dispute as well as the findings that both state/police protection and internal relocation would be available to him upon his return to Vietnam (see [33] – [48] of Director’s decision of 31 July 2017), nor would it assist him in his present request for subsequent claim based essentially, as correctly found by the Director, on the same threats from his creditor as before.

13.  As for his other complaint that the Director in his second decision only adopted the same country condition of Vietnam used in the previous decision, and hence is said to have relied on outdated assessment in his consideration of the Applicant’s request to make a subsequent claim, similarly for the reasons as noted above, given the Director’s findings on the availability of state/police protection and reasonable internal relocation to the Applicant upon his return to Vietnam, and in which the Applicant has not shown or identified any error of law or facts, I do not find any reasonably arguable basis for the Applicant to challenge such findings of the Director, nor do I find any merits in this complaint of his.

14.  Furthermore, the fact is that it has been 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 him to relocate to other part of Vietnam, a decision which the Applicant has never appealed to the Board, there is simply no justification in the first place to afford him with non-refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKCA 526.        

15.  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 therefore refuse his 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