TRAN THI NGAN v. DIRECTOR OF IMMIGRATION

HCAL 245/2022

[2025] HKCFI 820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 245 OF 2022

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;

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 17 May 2021 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on all applicable grounds and that her appeal to the Torture Claims Appeal Board (“Board”) had subsequently been withdrawn at her own request.

2.  The Applicant is a 32-year-old national of Vietnam who previously with her mother entered Hong Kong illegally on 22 August 2014 and surrendered to the Immigration Department on 25 August 2014 when they jointly raised a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by the creditor of the Applicant’s mother over her mother’s outstanding debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 2 August 2016 and a Notice of Further Decision dated 22 March 2017 the Director rejected the claims of the Applicant and her mother on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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 decisions the Director took into account of all the relevant circumstances of the claims of both the Applicant and her mother and assessed the level of risk of harm from the creditor of the Applicant’s mother upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from the creditor, that such risk arose from a private monetary dispute between the Applicant’s mother and her creditor only without any official involvement that state or police protection would be available to the Applicant and her mother 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 spread across a vast territory that it would not be unduly harsh for the Applicant and her mother as able-bodied adults with working experience to move to other part of the country away from their home district in large cities where it would be difficult if not impossible for anyone to locate them.

5.  The appeals by the Applicant and her mother against the Director’s decisions were subsequently withdrawn by the Board on 18 January 2018 at their own written request, whereupon the Director’s decisions were confirmed by the Board as final, and that on 12 February 2018 the Applicant and her mother were repatriated to Vietnam.

Request To Make Subsequent Claim

6.  Sometime in June 2020 the Applicant departed Vietnam for China, and from there she again sneaked into Hong Kong, and was arrested by police on 25 July 2020. After she was referred to the Immigration Department for investigation, the Applicant in writing on 11 September 2020 requested to make a subsequent claim on the basis that upon their repatriation to Vietnam in 2018, her mother was still unable to repay her debts, and hence her creditor has continued to make threats against them that the Applicant still fears of being harmed or killed by her mother’s creditor in 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 on 25 September 2020 in writing required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did via her lawyer from Duty Lawyer Service (“DLS”) which were essentially the same threats from her mother’s creditor as before.

9.  By a Notice of Decision dated 17 May 2021 Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of her previous claim, and that she failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been a 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.

10.  On 22 April 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 her Form or in her supporting affirmation of the same date in which she just asserted that the decision has been reached unfairly without allowing her an opportunity to clarify her case and situation in her home country but with no relevant or necessary details or particulars or elaboration as to how it was so.

11.  By then the Applicant was also out of time with her 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 her to file her Form 86 fell on 17 September 2021 after discounting the month of August for court’s vacation, the Applicant was therefore more than 7 months late with her 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 more than 7 months must be considered as very substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day of 17 May 2021 to her lawyer from DLS without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

14.  As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge. Moreover, recently on 5 November 2024 the Applicant filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country but without any explanation as to what has happened to her claimed risk from her mother’s creditor.

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 her such serious delay, I refuse to extend time and accordingly dismiss her 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