DO THI NGOAN v. DIRECTOR OF IMMIGRATION

HCAL 425/2022

[2025] HKCFI 5727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 425 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 the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration dated 17 September 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 17 September 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all the applicable grounds, while she never brought any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and was subsequently repatriated to her home country.   

2.  The Applicant is a 52-year-old national of Vietnam who first entered Hong Kong illegally on 22 February 2016 and was arrested by police on 24 February 2016. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 29 July 2016 and a Notice of Further Decision dated 13 December 2016, 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 her 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 Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her creditor upon her return to Vietnam due to the low intensity and frequency of past ill-treatment from her creditor, that there is no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between just the 2 of them 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 94 million people spread across a vast territory of more than 310,000 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 her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

5.  The Applicant never brought any appeal to the Board against the Director’s decisions, and more than 2 years later on 2 April 2019 she was repatriated to Vietnam.

Request To Make Subsequent Claim

6.  Sometime in early 2021, the Applicant sneaked back into Hong Kong and was arrested on 18 February 2021, and for which she was subsequently convicted of the offences of possession of a faked identity card and undertaking unauthorized employment, and was sentenced to prison for 15 months, during which she in writing to the Immigration Department requested to make a subsequent claim on the basis as she is still unable to repay her debts to her creditor in her previous claim that she still fears of being harmed or killed by her 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, the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did by a letter dated 22 August 2021 in which she just repeated her previous claim as before.     

9.  By a Notice of Decision dated 17 September 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 her previous claim, and that she failed to provide any evidence in writing to satisfy an immigration officer that there has been any 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 given the unchallenged findings by the Director in her previous claim of the availability of both state protection and internal relocation to the Applicant upon her return to Vietnam to similarly negate whatever risk that may arise from her intended subsequent claim.

10.  On 2 June 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 supporting affirmation of the same date other than some bare and vague assertions that relocation to another place within her home country is not feasible due to her health issue and with the nationwide network of gangsters in Vietnam that there would be no escape from her creditor but without any relevant details or corroborating evidence in support of such assertions, nor did she subsequently attend the scheduled hearing of her application without any explanation.   

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 December 2021, the Applicant was therefore almost 6 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 almost 6 months must be considered as very substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, and that she also failed to attend the hearing of her application without any explanation.

14.  The record shows that the Director’s decision was sent on the same day of 17 September 2021 to her then reported address without being returned through undelivered post, and in the absence of any explanation from the Applicant, I am unable to see any good or valid reason for her such serious delay.          

15.  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, nor as noted above did she attend the scheduled hearing of her application without any explanation.                         

16.  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 her intended application for judicial review, and in the absence of any good reason for her 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