BUI THI HOA v. DIRECTOR OF IMMIGRATION

HCAL 482/2023

[2023] HKCFI 1567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 482 OF 2023

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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration dated 26 July 2022 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 (“Director”) dated 26 July 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.  The Applicant is a 60-year-old national of Vietnam who earlier entered Hong Kong illegally on 24 December 2015 and surrendered to the Immigration Department on 28 December 2015 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her outstanding debts.

Previous Non-Refoulement Claim

3.  The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school she assisted her parents in farming in her home district, got married and raised a family with a daughter.

4.  In July 2014 she borrowed a loan from a local money-lender with monthly interest payment until discharge of the loan, which she managed to do until early 2015 when she started to default in her loan repayment, and after being threatened by her creditor with violence, she fled to Tinh Quang Ninh to take shelter in a relative’s place, and on 22 December 2015 she departed Vietnam for China, and from there she sneaked into Hong Kong on 24 December 2015 and raised her non-refouleemnt claim for protection, for which she completed a Non-refouleemnt Claim Form (“NCF”) and attended screening interview before an immigration officer with legal representation from Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 21 December 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 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”).

6.  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 her creditor and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her loan, that in any event it was a private monetary dispute between them 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 96 million people spread across a vast territory of more than 331,000 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.

7.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 12 October 2018 after she failed to attend the scheduled hearing for her appeal without any explanation and upon finding no merits in her claim or her appeal, and that it also confirmed the Director’s decision, whereupon on 31 October 2018 she was repatriated to Vietnam.

8.  However, some 3 years later on 16 February 2022 the Applicant sneaked back into Hong Kong, and was arrested by police on 21 February 2022, for which she was subsequently convicted and sentenced to prison.

Request To Make Subsequent Claim

9.  By a letter dated 5 March 2022 to the Immigration Department the Applicant requested to make a subsequent claim on the basis that she still fears of being harmed or killed by her creditor if refouled to her home country in Vietnam.

10.  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.”

11.  Accordingly, on 25 March 2022 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 20 April 2022 enclosing some documents in support of her request to make a subsequent claim.

12.  By a Notice of Decision dated 26 July 2022 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof if true was essentially the same as that of her previous claim, and that she failed to provide 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 in the absence of any necessary evidence or information whether her claimed risk of harm from a creditor in her subsequent claim is the same as in her previous claim or that it is a new or different creditor but that in which case such risk would still be from a private monetary dispute which would be negated by state protection and reasonable internal relocation as correctly found by both the Director and the Board in her previous claim.

13.  On 28 March 2023 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 filed on the same day to which she just attached a copy of the decision but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

14.  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.

15.  As the last day of the 3-month period for her to file her Form 86 fell on 26 October 2022, the Applicant was therefore some 5 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.

16.  In the Applicant’s case, a delay of 5 months must be considered as very substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day of 26 July 2022 to her at Lo Wu Correctional Institution where she was then serving her imprisonment but would still be able to seek and access legal assistances, I fail to see any good or valid reason for her such serious delay.

17.  As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge or any merits in her intended application.

18.  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 for 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