DO VAN KHOI v. DIRECTOR OF IMMIGRATION

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

Following:

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 29 November 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection for the second time after his previous non-refoulement claim and subsequent claim had all been rejected under the Unified Screening Mechanism (“USM”) on all the applicable grounds.   

2.  The Applicant is a 33-year-old national of Vietnam who first entered Hong Kong illegally on 22 March 2015 and surrendered to the Immigration Department when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts and/or by the family of a victim died in a traffic accident caused by the Applicant.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 18 August 2016 and a Notice of Further Decision dated 3 March 2017 the Director of Immigration (“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 decisions 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 or the family of the traffic accident victim 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 either of them to seriously harm or kill him, that in any event these were private and personal disputes between them 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 94 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 young adult with working experience to move to other part of the country away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for anyone to locate him.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“Board”) on 27 October 2017 at the Applicant’s own request to withdraw the same after the Board was satisfied that his request was freely sought, that he understood the consequences of the withdrawal, and that he had good reason for his proposed withdrawal by confirming that it was safe for him to return to his home country, and accordingly the Board confirmed the Director’s decision as having finally determined the claim, whereupon the Applicant was on 28 September 2017 repatriated to Vietnam.

6.  However, just slightly over one year later in December 2018 the Applicant sneaked into Hong Kong again, but was shortly thereafter arrested and repatriated back to Vietnam on 30 January 2019 without raising any non-refoulement claim.

Request to Make a Subsequent Claim

7.  Some 10 months later on 20 November 2019 the Applicant again entered Hong Kong illegally, and was arrested by police on 22 November 2019, and when he was referred to the Immigration Department, he made a request to raise a subsequent claim for non-refoulement protection on the basis that upon returning to Vietnam in January 2019, he borrowed another loan from the same creditor as in his previous claim to start his own business, but after he lost his business and was unable to repay his loan, his creditor again threatened to kill him, and so he fled Vietnam again to come to Hong Kong to seek non-refoulement protection.

8.  Somehow the Director allowed the Applicant’s request to make his subsequent claim, and for which he completed another Non-refoulement Claim Form (“NCF”) and attended a screening interview before an immigration officer with legal representation from Duty Lawyer Service (“DLS”).

9.  By a Decision dated 9 February 2021 the Director again rejected the Applicant’s subsequent claim on all the applicable grounds for similar reasons as before that his claimed risk of being harmed or killed by his creditor upon his return to Vietnam was assessed to be low, that it was a private monetary dispute between the 2 of them only without any official involvement that state protection and reasonable internal relocation would be available to the Applicant to return to Vietnam without any risk of being harmed or located by anyone.

10.  The Applicant never brought any appeal to the Board against the Director’s decision, and was subsequently repatriated to Vietnam on 6 November 2021.        

Request To Make Another Subsequent Claim

11.  Some 3 years later on 9 July 2024 the Applicant again entered Hong Kong illegally, and was arrested by police on 15 July 2024, whereupon he again in writing to the Immigration Department requested to make another subsequent claim on the basis that upon returning to Vietnam in 2021, he borrowed another loan from the same creditor as before in his previous claims to start a pig and chicken farm business, but in late 2023 he lost his business after his stocks were wiped out by a plague that he was unable to repay his loan, and when his creditor threatened to kill him, he therefore left the country again to come to Hong Kong to seek protection.      

12.  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.”

13.  Accordingly, the Director by a letter dated 2 August 2024 required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did by way of a written submission via his lawyer from DLS in which he essentially repeated the same claim as above of his fear of being harmed or killed by the same creditor as before over another unpaid debt.     

14.  By a Notice of Decision dated 29 November 2024 the Director refused to allow the Applicant to make a subsequent claim upon doubting the credibility of his intended subsequent claim as it is not credible that the same creditor would be willing to make yet another loan to the Applicant given his poor record of non-repayments in the past, that even if his account were true that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide 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 finding by the Director in his previous claims of the availability of state protection and reasonable internal relocation to the Applicant upon his return to Vietnam to similarly negate whatever risk that may arise from his intended subsequent claim.

15.  On 10 January 2025 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Director reached the decision wrongly in assessing his non-refoulement claim in that the decision as not reasonable or fair as required by the Wednesbury test in failing to recognizing that his right to life must be protected by criminal law from the killing that he may face if deported back to his home country;

(2)  That the Director failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(3)  That the Director acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the personal background and experience of the Applicant into account in assessing his claim;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give weight to such evidence and instead ruled otherwise against the Applicant’s claim;

(5)  That the Director was procedurally unfair or improper when assessing whether or not to accept explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in a position to offer his response;

(6)  That the Director had clearly shown unfair attitude against the Applicant which in itself is enough to render his decision void;

(7)  That the Director failed to attain high standards of fairness in failing to recognize the Applicant’s assertions that corruption and incompetency of the administration in his home country is still a very serious problem as various human rights organizations have compiled reports that stated testament to such assertion that the Director’s decision should be considered unreasonable in the scope of public law;

(8)  That the Director’s decision to refuse the Applicant’s claim was wrong and irrational that leave should be granted for it to be judicially reviewed.           

16.  These are however all just vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to his case, or in what way did the Director or the immigration officer err in the decision or that it was unfair or unreasonable, or how did the Director fail to properly assess the relevant COI, or what relevancy is State Acquiescence to the Applicant’s case which on the factual basis of even his own case was just a private monetary dispute between him and his creditor only without any official involvement at all. As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

17.  Moreover, the Applicant recently on 14 July 2025 filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country but without any details or explanation as to what has happened to his claimed unpaid debt.

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 to make a subsequent claim, henceforth I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that it is now safe for him to return to his home country, I accordingly dismiss his 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