TRAN THI BICH v. DIRECTOR OF IMMIGRATION

HCAL 383/2021

[2023] HKCFI 2164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 383 OF 2021

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;

Leave to apply for judicial review 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 4 March 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all applicable grounds, of which she did not lodge any appeal to the Torture Claims Appeal Board (“Board”), and was subsequently repatriated to her home country in Vietnam on 18 January 2017, but almost 4 years later in December 2020 she sneaked back into Hong Kong, and upon her arrest by the police, she then requested to make a subsequent claim for non-refoulement protection.

Previous Non-Refoulement Claim

2.  The Applicant is a 32-year-old national of Vietnam who first entered Hong Kong illegally on 4 November 2015 and was arrested by police on 10 November 2015. After she was referred to the Immigration Department for investigation, 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 unpaid debts.

3.  By a Notice of Decision dated 14 December 2016 (in which the Applicant’s name and year of birth were somehow mistakenly typed as Tran Thi Bach and 1998 respectively instead of Tran Thi Bich and 1988 as stated in her recognizance papers and in her present application, and which the Director has subsequently rectified and confirmed by a letter dated 28 July 2023 that it is the same person) 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 and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of her creditor 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 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 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 never lodged any appeal against the Director’s decision, and was repatriated to Vietnam on 18 January 2017.

Request To Make Subsequent Claim

6.  Almost 4 years later on 19 December 2020 the Applicant sneaked back into Hong Kong and was arrested by police on 22 December 2020. After she was referred to the Immigration Department for investigation, she in writing on 28 December 2020 requested to make a subsequent claim for non-refoulement protection on the basis that after her previous repatriation to Vietnam in January 2017 and upon returning to her home in Hai Phong, in July 2018 she was again threatened and beaten by her creditor over her previous outstanding debts that she subsequently had to flee Vietnam again to come to Hong Kong for protection, as she still fears of being harmed or killed by her creditor if refouled to her home country.

7.  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.”

8.  Accordingly, on 21 January 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 on 2 February 2021 with further information in support of her request to make a subsequent claim.

9.  By a Notice of Decision dated 4 March 2021 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was 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.

10.  On 18 March 2021 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 she put forth the following grounds for her intended challenge:

(1)  That the Director in considering the Applicant’s request to make a subsequent claim failed to take into account or give sufficient weight to the argument that the state would be liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(2)  That the Director failed to attain high standard of fairness required by the Wednesbury test in the consideration of the above argument that his decision should be considered unreasonable in the scope of Public Law.

11.  These grounds are however just some bare and vague assertions of the Applicant without the necessary and relevant details or particulars or elaboration as to how they apply to her case or in what way did the Director err in his decision, or how did the Vietnamese state or police fail to provide protection to her when even on her own case that she never sought any protection from the police in respect of the alleged threats and assaults from her creditor in either her previous claim or in her present request to make a subsequent claim.

12.  The fact is that it has been correctly established by the Director in the Applicant’s previous claim and which was never challenged by her to the Board, and with the factual bases of which the same as in her proposed subsequent claim, that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins and Anor [2013] 1 HKC 526.

13.  In the premises and having considered both the decisions of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them or any failure of him to apply high standards of fairness in the consideration and assessment of the Applicant’s previous claim and her present 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 accordingly refuse 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