NGUYEN THI THANH HOA v. DIRECTOR OF IMMIGRATION

HCAL 1298/2022

[2023] HKCFI 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1298 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 for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 27 May 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 27 May 2021 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 (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

Previous Non-Refoulement Claim

2.  The Applicant is a 39-year-old national of Vietnam who had previously been deported from Hong Kong for illegal entry again entered Hong Kong illegally on 24 September 2016, and 5 days later on 29 September 2016 she surrendered to the Immigration Department and 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.

3.  By a Notice of Decision dated 8 November 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”).

4.  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 upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her for repayment of her debts, that in any event her problem with her creditor 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.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 13 July 2018 upon finding and agreeing with the Director that it was a private monetary dispute between the Applicant and her creditor without any official involvement that any risk arising therefrom would be avoided or negated by the availability of state/police protection to the Applicant upon her return to her home country as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by her creditor, and that it also confirmed the decision of the Director.

6.  On 26 July 2018 the Applicant filed a Form 86 under HCAL 1472/2018 for leave to apply for judicial review of the Board’s decision, but it was subsequently withdrawn without determination on 27 November 2019 upon her written request and confirmation that her problem of debts had been resolved with the assistance from her family in Vietnam, and that it would be safe for her to return to her home country.

7.  Accordingly, on 3 January 2020 the Applicant was repatriated to Vietnam without proceeding with any further legal challenge of the Board’s decision.

Request To Make Subsequent Claim

8.  Some 10 months later on 26 October 2020 the Applicant sneaked back into Hong Kong, and upon her arrest by the police she in writing to the Immigration Department requested to make a subsequent claim on the basis that her creditor is still looking for her everywhere in Vietnam that she had to flee her country again for Hong Kong and hence she still fears of being harmed and killed by her creditor if refouled to her home country.

9.  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.”

10.  Accordingly, on 24 February 2021 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 8 March 2021 with information in support of her request.

11.  By a Notice of Decision dated 27 May 2021 the 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 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.

12.  On 21 November 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in her supporting affirmation filed on the same day and a written submission dated 12 December 2022 she put forth various grounds for her intended challenge which can be summarized as follows:

(1)  That the Director reached the decision wrongly in assessing her subsequent claim in that it was not reasonable or fair as required by the Wednesbury test in failing to recognize that her right to life must be protected by the criminal law from killings which she may face if deported back to her home country;

(2)  That the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in her case which led to an unfair outcome of rejecting her claim;

(3)  That the Director acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take into account of the Applicant’s personal background and experience and failed to consider or give enough weight to relevant COI that police in her home country would not be able to protect;

(4)  That the Director was procedurally improper and/or unfair when assessing whether to accept the explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer any response;

(5)  That the director failed to take into account or to give enough weight to the argument that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as stated testament by reports by various human rights organizations which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(6)  That the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision that it should be considered unreasonable in the scope of public law.

13.  By then the Applicant was however seriously 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.

14.  As the last day of the three-month period for her to file her Form 86 fell on 27 August 2021, the Applicant was therefore some 15 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.

15.  In the Applicant’s case, a delay of 15 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that she had never received the decision in the mail, and it was only much later when she reported on her recognizance to the Immigration Department that she was informed by her immigration officer of the decision, but by then she was already seriously out of time with her application.

16.  The record shows that the Director’s decision was sent on the same day of 27 May 2021 to her last reported address without being returned through undelivered post, and in the absence of any further details or evidence to corroborate her bare assertion, I am not satisfied that the Applicant has provided a good or valid explanation for her such serious delay.

17.  As for the merits, if any, of her intended application, those grounds relied on by the Applicant as noted above are however all just vague and bare assertions containing a few key words or phrases but without any relevant details or particulars or elaboration as to how they would apply to the Applicant’s case or how did the Director err in the decision, or in what way was state acquiescence relevant to her case, or how did the Director act in a procedurally unfair manner or fail to take account of the relevant COI in the assessment of her claim or to apply high standards of fairness in the decision. None of these assertions were elaborated or presented with any relevant details or particulars by the Applicant and as such are not reasonably arguable for her intended challenge, and given the unchallenged and correct findings by both the Director and the Board in her previous claim of the availability of state protection and reasonable internal relocation to the Applicant upon her return to her home country that any risk arising from her subsequent claim based essentially on her previous claim will be similarly avoided or negated, I do not find any merits in her intended application either.

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 the Applicant’s intended application for judicial review given the correct findings by both the Director and the Board in her previous claim upon which her subsequent claim is based that it was a private monetary dispute between her and her creditor without any official involvement that any risk arising therefrom is a localized one which would be negated or avoided by the availability of state protection and internal relocation to the Applicant, 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