NGUYEN VAN MINH v. DIRECTOR OF IMMIGRATION

HCAL 657/2023

[2023] HKCFI 2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 657 OF 2023

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 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 13 February 2023 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all applicable grounds, and that his appeal/petition to the Torture Claims Appeal Board (“Board”) against the Director’s decision was subsequently withdrawn at his own request and was accordingly dismissed.   

2.  The Applicant is a 27-year-old national of Vietnam who first entered Hong Kong illegally on 2 September 2015 and surrendered to the Immigration Department on 7 September 2015 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his father’s creditor over his father’s outstanding debts.

Previous Non-Refoulement Claim  

3.  By a Notice of Decision dated 13 April 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 father’s creditor upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from his father’s creditor and followers, that there was no evidence of any real intention of them to seriously harm or kill the Applicant other than to press him to repay his father’s debts, that in any event it was a private monetary dispute between his father and 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 his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his father’s creditor to locate him.

5.  The Applicant’s appeal against the Director’s decision was subsequently dismissed by the Board on 13 April 2017 upon his request to withdraw the appeal as his problem in his home country had been solved and that he wanted to return to his home country, and that the Board also confirmed the Director’s decision, whereupon the Applicant was on 20 June 2017 repatriated to Vietnam.

Request To Make Subsequent Claim

6.  Some 4 years later on 11 June 2021 the Applicant sneaked back into Hong Kong, and after his arrest by the police one year later on 12 June 2022 and for which he was subsequently convicted and sentenced to prison for 15 months, during which the Applicant in writing to the Immigration Department requested to make a subsequent claim on the following bases:

(a)   That upon his return to Vietnam in June 2017, he worked as a restaurant waiter in his home district in Hai Phong to make his living;

(b)   That in January 2021 he started to gamble on football matches on the internet operated by some local gangsters, and subsequently incurred a lot of gambling debts owed to those gangsters;

(c)   That after being threatened and beaten by those gangsters for failing to settle his gambling debts, the Applicant became fearful for his life, and so in June 2021 he departed Vietnam again for China, and from there he sneaked into Hong Kong, and upon his subsequent arrest by the police and was sent to prison, he then requested to make a subsequent claim on the basis that he would be harmed or killed by those local gangsters 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 9 January 2023 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 13 February 2023 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same in nature as that of his previous claim as a private monetary dispute with his creditor without any state or official involvement, 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 given that any risk arising therefrom will similarly be negated by state protection and internal relocation being available to the Applicant upon his return to Vietnam as correctly found in his previous claim.

10.  On 5 May 2023 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 seeking relief was given in his Form or in his supporting affirmation filed on the same day in which he just stated that he does not agree with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.   

11.  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 accordingly 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