NGUYEN THE QUYNH alias VU VAN VIET v. DIRECTOR OF IMMIGRATION

HCAL 1178/2021

[2025] HKCFI 5666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1178 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

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 11 August 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his 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 the applicable grounds.   

2.  The Applicant is a 40-year-old national of Vietnam who entered Hong Kong illegally on 18 April 2015 and surrendered to the Immigration Department on 22 April 2015 when he raised a non-refoulement claim under a different identity on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his debts.

Previous Non-Refoulement Claim          

3.  By a Notice of Decision dated 29 May 2018 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 his 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 his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor 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 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 his home district in large cities where it would be difficult if not impossible for his creditor to locate him.

5.  The Applicant’s appeal against the Director’s decision was then dismissed by the Board on 21 February 2019 upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decision.

6.  The Applicant never sought leave from the Court to apply for judicial review of the Board’s decision, and accordingly on 26 June 2019 he was repatriated back to Vietnam.

Request To Make Subsequent Claim

7.  Sometime in late 2020 the Applicant sneaked back into Hong Kong, and was arrested by police on 10 October 2020, and on 15 October 2020 under his present identity the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that after returning to Vietnam in 2019 he borrowed another loan of US$35,000 from another money-lender to start a real estate business but which subsequently went bankrupt due to the COVID-19 pandemic that he was unable to repay his loan, and after being beaten by men sent by his creditor that he fled his home country to come to Hong Kong again to seek protection, and that he fears of being harmed or killed by his creditor if refouled to Vietnam.     

8.  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.”

9.  Accordingly, the Director by a letter dated 26 January 2021 required the Applicant to provide further information and evidence in writing in support of his request within 14 days, but for which he repeatedly through his lawyer from Duty Lawyer Service (“DLS”) requested for further extensions of time, of which the Director repeatedly extended for more than 6 months until 6 August 2021 when the Applicant never did provide any further supporting evidence.     

10.  By a Notice of Decision dated 11 August 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 his previous claim, and that despite given ample time he failed to provide any or sufficient evidence in writing to satisfy an immigration officer 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 given the unchallenged findings by both the Director and the Board in his previous claim of the availability of state protection and internal relocation to the Applicant upon his return to Vietnam to similarly negate whatever new risk that may arise from his intended subsequent claim which even if true that on the factual basis of even his own case is another private monetary dispute between him and another creditor without any state or official involvement as in his previous claim.

11.  On 20 August 2021 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forward various grounds for his intended challenge but for which he subsequently failed to attend the scheduled hearing for his application without any explanation, and which may be summarized as follows:

(1)   That the Director was wrong in refusing his request for extension of time for submitting supporting documents and information despite repeated requests made on his behalf by his lawyer to the Director;

(2)   That the Director made his decision to refuse the Applicant’s request to make a subsequent claim without due consideration of his reasonable and unequivocal right to submit documents in support of his request;

(3)   That the Director delivered unfounded and unfair decision purely on the Applicant’s written signification without making further enquiry;

(4)   That the Director just relied on his previous assessment of the relevant COI of Vietnam in his previous claim without making proper assessment of the most updated country conditions in the assessment of the Applicant’s request to make a subsequent claim.            

12.  For the Applicant’s complaints under Grounds (1) and (2) essentially over the Director’s refusal to extend further time for him to submit documents and information in support of his request, as noted above that the Director did already extend more than 6 months for the Applicant to do so, and yet despite what appeared to me ample time provided to him and with the assistance of his lawyer, the Applicant failed to even indicate or identify what further documents, and why, that he would need further time in excess of 6 months to obtain.  As such, and in the circumstances I do not find any procedural unfairness or unreasonableness in the Director’s refusal to extend even further time as requested by the Applicant, nor do I find any merits in his such complaints.

13.  As for his complaints under Grounds (3) and (4), given the similar factual basis of even his own case of the private nature of the dispute between him and his alleged creditor as in his previous claim, and in view of the unchallenged findings by both the Director and the Board in his previous claim of the availability of both state protection and internal relocation alternatives to the Applicant upon his return to Vietnam to similarly negate whatever risk that may arise from his intended subsequent claim, and that it is for the Applicant to establish, or at least to indicate or suggest any change in the latest or current COI in his home country that would go to support his case but which he has failed to do so, I do not find these grounds reasonably arguable for his intended challenge either.                                  

14.  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 the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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