BUI VAN THUAN v. DIRECTOR OF IMMIGRATION

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 the Director of Immigration dated 10 November 2021 be refused.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 6 May 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Director of Immigration dated 10 November 2021 (respectively, the “Director” and the “Director’s Decision”).  By that decision, the Director refused to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director on all applicable grounds under the Unified Screening Mechanism (USM) on 8 May 2017.  His appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) was dismissed on 13 September 2017.

2.  On 17 January 2018, the Applicant was repatriated to his home country in Vietnam.  However, on 15 August 2021, i.e. after a period of 3.5 years, he sneaked back into Hong Kong and was arrested by the Hong Kong Police on 7 September 2021.  He raised his request to make a subsequent claim on 16 September 2021.

3.  The Applicant is absent from the oral hearing before me.  I have considered the Leave Application based on the materials available.[1]

Discussion

4.  The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of the High Court, Cap 4A.

5.  In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[2]

6.  First, the delay in question is not insubstantial.  The Applicant is almost 3 months late with his application.  He has however neither applied for an extension of time nor provided any explanation for the delay in his affirmation made in support of the Leave Application.

7.  Second, regarding merits, I am not persuaded that the Applicant’s intended application for judicial review of the Director’s Decision is reasonably arguable with any realistic prospect of success.[3]

8.  A decision by the Director in refusing to allow an applicant to make a subsequent claim under section 37ZO of the Immigration Ordinance Cap 115 is not appealable to the Board.[4]

9.  Judicial review does not operate as a further avenue of appeal.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[5]  In seeking to challenge the Director’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation.  As matter stands, both documents are virtually devoid of substance, save for repeating his claims and a bare assertion that the Director’s Decision “was also wrong”.  The Applicant has failed to identify any valid or effective public law grounds.[6]

10.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law.  Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Director’s Decision for any errors of law, procedural unfairness or irrationality.

11.  Under section 37ZO of the Ordinance, there are constraints on an applicant who has previously made a non-refoulement claim to make a subsequent claim:-

“(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…”

12.  As can be seen in the Director’s Decision, the Director duly considered the circumstances provided by the Applicant in his letters dated 16 September 2021 and 28 September 2021 respectively.

13.  The Director refused to allow the Applicant to make a subsequent claim upon finding the basis thereof was essentially the same as that of his previous claim. His current fear arises from the same type of conflict due to his inability to repay his debts or loans albeit the fear and threats come from a different creditor this time.

14.  The Director did not accept 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.  In particular, the Director was entitled to and did take into account the findings and assessment in relation to the Applicant’s previous claim including the availability of state protection which would negate whatever risk that may arise from his debt problem.

15.  Therefore, I do not find any error of law or procedural unfairness or irrationality on the part of the Director in the consideration and assessment of the Applicant’s request to make a subsequent claim.

16.  Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious.  Conversely, allowing him to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent.  For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

17.  I see no good reason to extend time for the Applicant to apply for leave to seek judicial review.  I accordingly dismiss the 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