DOAN VAN THAI v. DIRECTOR OF IMMIGRATION

HCAL 1267/2023

[2023] HKCFI 2581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1267 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

1.  Leave to apply for Judicial Review be refused; and

2.  A Restricted Proceedings Order (RPO) be made against the applicant.

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 23 June 2023 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1690 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

2.  In the previous claim, the applicant applied for non-refoulement protection together with his wife. However, for reasons unknown to this Court, the wife is not a party to this action.

3.  The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.

The procedural history

4.  The applicant is a national of Vietnam. He was arrested by police for illegal entering Hong Kong on 30 July 2014. The Immigration Department issued a removal order on 28 August 2014. On 1 September 2014, the applicant applied for non-refoulement protection. He was on bail. However, he was arrested by police for illegal working in Hong Kong without the permission of the Director, for which he was sentenced to 15 months’ imprisonment.

5.  He raised non-refoulement claim by way of a written signification dated 1 September 2014 on the grounds of Torture risk under Part VIIC of the Ordinance, BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

6.  His claim was rejected by the Director by a Notice of Decision dated 26 April 2017.

7.  He appealed to the Torture Claims Board (the “Board”). By Decision dated 4 May 2018, the Board dismissed his appeal.

8.  He applied for leave for judicial review of the Board’s Decision and failed. He then pursued the matter to the appellate courts up to the Court of Final Appeal.

9.  His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed on 3 March 2023.

10.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 13 April 2023.

11.  By the Director’s Decision, the Director refused his application.

The subsequent claim application

12.  The factual basis of his previous claim is that if he is refouled, he will be harmed or killed by the creditor because he was unable to repay the loan.

13.  The Director found that his previous claim was not substantiated. He appealed to the Board. The applicant appealed to the Board.

14.  Having considered his evidence on the papers without a hearing, the Board, by the Board’s Decision, dismissed his appeal on the reasons:

(1)  Vietnam government has been taking steps to stem corruption in Vietnam with effects [51 & 52] and there is evidence to show that Vietnam government has the capability of combatting crimes [64].

(2)  The applicants failed to established that the treatments they received from the creditor had reached the minimum threshold of torture for BOR 3 risk [57].

(3)  The applicants failed to establish Persecution risk [67].

(4)  The applicants failed to establish Torture risk [70].

(5)  There is no evidence to show that they have BOR 2 risk if they return to Vietnam [72].

(6)  Internal relocation is an option open to them [81].

15.  Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realist prospect of success.

16.  In support of his application, the applicant had, with the assistance of the duty lawyer, submitted his statement and the news articles relating to the creditors harming or killing the debtors, who were unable to repay their debts in Vietnam.

17.  Having considered the materials, the immigration officer considered that the reasons put forward were evidence that had been considered in his previous claim and the news articles did not relate to his personal risk. The immigration officer did not accept that there had been significant change of circumstances since the applicant’s previous claim was finally determined. The Director thus refused the applicant’s application for the subsequent claim.

The application for leave to apply for judicial review application

18.  The applicant has set out his grounds in support of his application attached to Form 86 as follows:

(1)  he considers that the Director’s Decision is wrong and unreasonable as it had not the right to life under Article 2 of the Bills of Rights Ordinance;

(2)  the Director had not taken into consideration of state acquiescence;

(3)  the Director acted procedurally unfair as he had not given sufficient weight to the country of origin information (“COI”) that his country will not give him protection;

(4)  it is procedurally unreasonable for the immigration officer not to accept his explanations and unreasonably required him to answer questions that he was not in a position to offer any response;

(5)  the immigration officer had not taken into account that the administration of his country is corrupt and incompetent; and

(6)  the Director had failed to attain high standards of fairness in his decisions.

Discussion

19.  The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

20.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that he had relied upon the same reasons in his previous claim in support of his subsequent claim application. In view of his admission before me, I consider that it is unnecessary to consider those reasons under paragraph 18 as they are his bare assertions or his personal opinions without evidence, or they are inconsistent with his admission.

21.  There is no realistic prospect of success in his subsequent claim. I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The RPO

22.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.

23.  RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Direcctor of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021, § 9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, § 25.

24.  In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as his intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.

25.  For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against him. The RPO was explained to the applicant before the hearing. The applicant said that he understood the RPO and he had nothing to say.

26.  I am therefore satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court and any appeal, including this Order, without leave of the Court of First Instance.

(2)  All applications for leave under paragraph (1) shall be made to the Deputy High Court Judge K.W. Lung or in his absence, the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List.

(3)  At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of her intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with the said application for leave.

(4)  Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the Court written representations regarding the same.

(5)  All applications made pursuant to this order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the Court should otherwise direct.

(6)  If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the Court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the Court for a decision as to whether they should be permitted to continue or should be dismissed.

(7)  Notice of each decision by this Court or the designated Judge made pursuant to this order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings.

(8)  Whether or not any fresh proceedings are brought to the notice of the Court, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.

(9)  No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months.

(10)  No appeal shall lie from a decision of the Judge granting or refusing leave within this Order unless leave to appeal has been granted by the Court.

(11)  This order shall cease to have effect at the end of 5 years from the date of this order.

(12)  A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSITION

27.  The applicant’s application is dismissed.

28.  RPO in terms of paragraph 26 be made against the applicant.

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