TRAN THI HUYEN v. DIRECTOR OF IMMIGRATION

HCAL 853/2022

[2024] HKCFI 952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 853 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;

1.  Extension of time to file the application for leave to apply for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 30 August 2022 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 December 2021 (the “2021 Notice”) refusing her request to make a subsequent claim.

2.  The leave application was filed more than eight months after the date of the 2021 Notice sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, Rule 4(1) of the Rules of the High Court, the leave application was made more than five months out of time. Leave for filing the leave application is required.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton NPJ. The delay in this case is so substantial that leave may be refused on this ground alone, unless the Applicant has a reasonable and credible explanation for the delay. She did not give any explanation for the late application. Nevertheless, out of abundance of caution, instead of exploring the reasons for the delay with her, the Court proceeds to assess the prospect of success in the proposed judicial review.

4.  The Applicant is a Vietnamese national. She had previously entered Hong Kong illegally and surrendered to the authorities on 28 April 2015. She raised a non-refoulement claim by way of written signification on 28 April 2015 (the “previous claim”). Her previous claim was assessed under the Torture Risk[3], BOR 2 Risk[4], BOR 3 Risk[5] and Persecution Risk[6] grounds under the Unified Screening Mechanism (“USM”). It was rejected by the Director’s Notice dated 27 April 2017 (“the 2017 Notice”). She appealed to the Board against the 2017 Notice and then withdrew her appeal by way of letter dated 21 February 2018. Her reason for withdrawing the appeal was that it was “safe to return to…Vietnam”. On 23 February 2018, the Board allowed her application to withdraw, dismissed her appeal on the ground that her feared risks did not exist and confirmed the Director’s decision in the 2017 Notice. The Applicant was then repatriated to Vietnam on 9 March 2018.

5.  Three and half years later, the Applicant was arrested in Hong Kong for being an illegal immigrant. On 16 November 2021, she made a request to the Director (the “request”) for leave to make another claim for non-refoulement protection (the “intended subsequent claim”)[7]. On 19 November 2021 and 6 December 2021, an immigration officer invited her to provide further information and supporting evidence, but she did not respond. On 29 December 2021, the Director issued the 2021 Notice refusing her request to file her intended subsequent claim. The Applicant now applies for leave to apply for judicial review of the 2021 Notice.

The Applicant’s case under the previous claim

6.  The following account of the Applicant’s case is based mainly on her case as summarised by the immigration officer in the 2017 Notice, which the Applicant submitted in support of her leave application. In gist, the Applicant claimed that she would be harmed or killed by a moneylender because she was unable to re-pay her debt.

7.  The Applicant was born and raised in Haiphong City, Vietnam. She is now aged 37. She had received twelve years of education and had experience operating a tailor business and a merchandising business. She had worked as a beautician and operated a mobile phone business between May 2012 and July 2013.

8.  To expand her mobile phone business, the Applicant took out a loan of 300 million Vietnamese Dong at a monthly interest rate of 15% from the moneylender towards the end of 2012. The moneylender was a gangster and a loan shark. The Applicant was unable to repay the moneylender since mid-2013 as she was deceived by a South Korean mobile phone supplier. In July 2013, she sold her business to a friend.

9.  The moneylender had granted the Applicant various extensions of time to pay. On one occasion towards the end of 2013, the moneylender and his men came to the Applicant’s home to demand repayment. They took away her computer, motorbike and television. The moneylender also gave her a threat on her safety. In November 2013, the moneylender and his men came and demanded repayment. They beat the Applicant and her husband and threatened to kill her if she was unable to repay. The Applicant and her husband suffered bruises. She made a report to the public security bureau but no follow-up action was taken. She suspected that was because she had not pay any bribes. Despite she had reported the incident to the public security bureau, the moneylender continued sending men to her home and making phone calls to harass the Applicant, though she and her family were not physically harmed in those incidents.

10.  Eventually, the Applicant fled to Mainland China in mid-March 2014. She stayed for a year in Nanjing and came to Hong Kong in April 2015 to seek protection.

The Director’s finding in respect of the previous claim

11.  The Director assessed the Applicant’s claims on the basis of the case as she asserted. The Director noted that the moneylender had the chance to cause her serious harm in the incident in November 2013, but chose not to do so. After her report to the public security bureau, the moneylender did not attack her again. This suggested that the moneylender did not intend to cause her serious harm and that he only wanted to pressure the Applicant into making repayment. Further, the relatively low level of severity of the injuries suffered by her and her husband suggested that the moneylender was unlikely to cause her harm which would attain the minimum threshold of severity which would call for non-refoulement protection.

12.  In respect of Torture Risk ground, the Director found there was nothing to suggest that the moneylender acted with the authority or acquiescence of the Vietnamese government. In relation to Persecution Risk ground, the Director found that the Applicant’s dispute with the moneylender was purely private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

13.  The Director also found on the basis of authoritative and credible country of origin information (“COI”) that the Vietnamese government had made significant progress in preventing corruption in the public security bureau and illegal debt collection activities. The Vietnamese public security bureau had never said they would refuse to follow up on the Applicant’s case. Further, the Applicant did not know the background of the moneylender and there was nothing to suggest that the public security bureau willingly turned a blind eye to the moneylender’s action. The Director found it was pure speculation on the part of the Applicant that the public security bureau decided to take no action for her case or that they required a bribe before providing protection. The Director came to the conclusion that there was nothing to suggest that adequate state protection would not be available to the Applicant on her return.

14.  Applying the law applicable to non-refoulement protection to the Applicant’s case and the above finding of facts, the Director was not satisfied that the Applicant had discharged the burden of proving her entitlement to protection under any of the applicable grounds under the USM. Accordingly, the Director rejected the Applicant’s previous claim.

The Applicant’s case under the intended subsequent claim

15.  The Applicant claimed that prior to her return to Vietnam in March 2018, her family in Vietnam had made arrangements with the moneylender not to harassed her so that she may resume her business to make money to repay. After returning to Vietnam, the Applicant continued to operate her business. However, because of COVID-19, her business failed. She had to borrow money from the moneylender. When she was unable to repay, the moneylender threatened to kill her. Hence, she fled to Hong Kong again.

The Director’s finding in the request and intended subsequent claim

16.  The Director found that her perceived risks of harm under the intended subsequent claim also originated from illegal moneylenders. The Director had previously found that the Vietnamese government would take actions against corrupt officials (including those working in the public security bureau) and illegal debt collection activities and hence adequate state protection would be available to the Applicant against the moneylender. The Director had found under the previous claim that internal relocation was a viable option to avoid the perceived threats from moneylenders who usually operate in a localised area. On the evidence available, the Director came to the conclusion that there was nothing in the intended subsequent claim that could change these previous findings.

17.  The Director therefore did not accept there had been a significant change of circumstances since the Applicant’s previous claim was finally determined or withdrawn and that the change, when taken together with the other materials submitted in support of the previous claim, would give her intended subsequent claim a realistic prospect of success. Hence, the Director issued the 2021 Notice refusing her request for making a subsequent claim.

Legal principles applicable to judicial review

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[8].

Grounds for judicial review

19.  At the hearing, after the above legal principle had been explained to her, the Applicant confirmed that she had no complaint about errors of law, procedural unfairness or irrationality in the 2021 Notice. She reiterated the facts she relied on in her intended subsequent claim and her inability to repay the moneylender.

20.  In her Form 86, the Applicant reiterated her fears of harm from the moneylender on her return to Vietnam and advanced two other grounds of review. First, she submitted that her health is not good and she may be disadvantaged in the labour market and there is no guarantee she could adapt to the new location. Second, she said that with the nationwide social network of gangsters and clandestine connection with corrupt people in the government and police apparatus, it is possible for the moneylenders to find her out and harm her.

Discussion

21.  The facts relied on by the Applicant in her intended subsequent claim as such could not be valid grounds for applying for judicial review. In any event, the Director had fully taken them into consideration when making his decision in the 2021 Notice. The Applicant had been reminded to submit further materials in support of her request, but she did not respond. There was nothing which the Applicant had advanced to the Director which had not been taken into account by the Director. The Applicant had been explained the similarities between her previous claim and her intended subsequent claim and that the Director’s decision in the 2021 Notice was made on the basis of the facts in intended subsequent claim as she asserted. There is no substance in this ground of application.

22.  The Applicant had never put forward the other two grounds relating to her health and internal relocation to the Director when making her request. Relocation was an issue which had been explored by the Director in the previous claim. The Applicant’s then argument was that the moneylenders could locate her with their nationwide social network[9]. She never claimed that her health would not permit her to make a living in any new location. Her argument was dismissed by the Director on the basis of the COI and his finding that being an able bodied adult with her business experience, including a year’s experience in Nanjing and her Chinese language capability, it would not be harsh to expect her to relocate to other cities to avoid the risk of harm. She had been invited by the Director twice to submit further evidence in support of her request. Yet, knowing all these findings by the Director, she did not raise her health issue for the Director’s consideration and more importantly, her claim about ill-health is purely a bare assertion wholly unsupported by any credible allegation. The Director could not have erred or breached the high standard of fairness required of him in the making his decision in the 2021 Notice.

23.  Having rigorously examined the 2021 Notice, the 2017 Notice, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Director had correctly set out the law, key legal principles and statutory provisions relating to the four applicable grounds under the USM, in particular those relating to section 37ZO(2) of the Immigration Ordinance and making of a subsequent claim, and observed a very high standard of fairness. The Director assessed the Applicant’s request on the basis of the case in the intended subsequent claim as she asserted. These are the Board’s finding of facts which the Applicant could have no complaint. It was on the basis of these facts and those found under the 2017 Notice which is final and binding on the Applicant, that the Director further found she is not entitled to make a subsequent claim under section 37ZO(2). These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding and application of the law, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Furthermore, on the basis of authoritative and credible country of origin information, the Board is satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk of harm if it turns out to be real. These are also finding of fact which the Court in a judicial review will not interfere. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. It would be futile to grant the Applicant extension of time to file the leave application.

Conclusion

24.  For the above reasons, extension of time to file the leave application and the Applicant’s application for leave to apply for judicial review are refused.

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