TRAN VAN QUYEN v. DIRECTOR OF IMMIGRATION

HCAL 379/2022

[2025] HKCFI 5728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 379 OF 2022

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

Following:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration dated 26 July 2021 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

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 26 July 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director on 14 February 2017 under the Unified Screening Mechanism (“USM”) on all the applicable grounds, while he never brought any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and some 7 months later on 15 September 2017 he was repatriated to his home country.   

2.  The Applicant is a 41-year-old national of Vietnam who first entered Hong Kong illegally on 29 October 2015 and was arrested by police on 1 November 2015.  After he was referred to the Immigration Department for investigation, 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 14 February 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 and followers upon his return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his 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 300,000 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 Hanoi or 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 to the Board against the Director’s decision, and 7 months later on 15 September 2017 he was repatriated to Vietnam.

Request To Make Subsequent Claim

6.  Some 2 years later on 7 December 2019 the Applicant sneaked back into Hong Kong and was arrested by police more than 1 year later on 24 December 2020, and after he was referred to the Immigration Department for investigation, he requested to make a subsequent claim on the basis that he is still unable to repay his debts to his creditor in his previous claim and hence he still 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 Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did by a letter submitted on 5 March 2021 in which he just repeated his previous claim as before.     

9.  By a Notice of Decision dated 26 July 2021, the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was the same as that of his previous claim, and that he failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been any 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 the unchallenged findings by the Director in his previous claim of the availability of both state protection and internal relocation to the Applicant upon his return to Vietnam to similarly negate whatever risk that may arise from his intended subsequent claim which is exactly the same as his previous claim.

10.  On 24 May 2022, 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 supporting affirmation of the same date other than some bare and vague assertions that he cannot relocate within his home country due to health issue which he did not elaborate or corroborate with any evidence, or that with nationwide social network of gangsters that it is not possible for him to escape from his creditor but similarly without any relevant details or particulars or corroborating evidence, while he also failed to attend the scheduled hearing of his application without any explanation.   

11.  By then, the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12.  As the last day of the 3-month period for him to file his Form 86 fell on 26 October 2021, the Applicant was therefore some 7 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of 7 months must be considered as very substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, nor as noted did he attend the hearing of his application, and as the record shows that the Director’s decision was sent on the same day of 26 July 2021 (and re-sent on 18 August 2021) to the Applicant’s then reported address without being returned through undelivered post, and given the experience he already had from his previous claim, I am not satisfied that the Applicant have provided any good or valid reason for his serious delay.          

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, nor did he attend the scheduled hearing of his application without any explanation.                          

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 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, and in the absence of any good reason for his such serious delay, I refuse to extend time and accordingly dismiss 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