NGUYEN MANH DUNG v. DIRECTOR OF IMMIGRATION

HCAL 250/2021

[2021] HKCFI 1800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 250 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Vietnam who first entered Hong Kong illegally on 15 October 2013 and was arrested by police on 26 November 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his parents’ creditor over their failure to repay their debts. He was then released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Quang Yen Tinh, Quang Ninh, Vietnam where his parents ran a marine farm rearing sea produces including crabs with the assistance of loans from a local money-lender.

3.  In 2010 his parents suffered serious financial losses after their crabs breeding ponds were damaged by a typhoon and they started to have difficulties making their loan repayments, and about the same time the Applicant left home for further studies in Ha Noi where he stayed with his elder brother.

4.  In May 2012 the Applicant returned to his parents’ home in Quang Ninh for holiday and found the house almost empty with little furniture or household appliances as he was told by his parents that their creditor had taken them away due to their failure to repay their loans, and that they had had to put up the title of their house to a bank for a loan to reduce their debts to the money-lender that they now owned both the bank and money-lender more debts.

5.  In October 2013 when he again returned to his home village to visit his parents, the Applicant was abducted by their creditor and his followers in order to force his parents to repay their debts, but the Applicant managed to make his escape for Mong Cai, and on 22 October 2013 he departed Vietnam for China, and from there he later sneaked into Hong Kong on 24 October 2013, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 January 2015 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 16 March 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his parents’ creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between his parents and his creditor which had nothing to do with him and in the absence of 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”) shows that reasonable internal relocation alternatives are available in Vietnam with a large population of 93 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 ability to move to other parts of Vietnam away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his parents’ creditor to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend an oral hearing scheduled on 19 February 2016 without explanation, and that the Board proceeded to deal with his appeal in his absence and on paper. On 7 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board doubted the Applicant’s claim of fear of harm from his parents’ creditor over their dispute which had nothing to do with him, and found in any event that state/police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located by his parents’ creditor that his claim for non-refoulement protection failed on all applicable grounds.

10.  Meanwhile on 17 May 2017 the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 2 June 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated including right to life under BOR 2 Risk upon his return to Vietnam.

11.  As he did not launch any legal challenge against either decisions of the Director or the Board, the Applicant was subsequently repatriated to Vietnam on 24 July 2017.

12.  However, on 24 January 2020 the Applicant was arrested by police again for illegally entering and staying in Hong Kong, and for which he was subsequently convicted for breaching his deportation order and was sentenced to prison for 18 months.

13.  On 2 September 2020 the Applicant requested to raise another non-refoulement claim with the Immigration Department on the basis that upon being repatriated to Vietnam in 2017, his parents’ creditor was still looking for him everywhere that he was still fearful for his life, and hence he departed Vietnam again for Hong Kong in 2020 to seek non-refoulement protection.

14.  As Section 37ZO of the Immigration Ordinance provides that a person who has previously made a torture claim must not subsequently make another torture claim except that he may make a subsequent claim if he can provide sufficient evidence in writing to satisfy an immigration officer that (i) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn, and that (ii) 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, the Director accordingly by a letter dated 6 January 2021 requested the Applicant to provide further information and evidence in writing in support of his request within 14 days, and for which  he was also informed of his right to seek legal representation and the availability of publicly funded legal assistance.

15.  The Applicant by a letter dated 27 January 2021 replied that he only wished to be allowed to take refuge in Hong Kong until his parents are able to repay their debts due to their creditor in Vietnam without providing any further evidence or information in support of his request to make a subsequent claim. 

16.  By a Notice of Decision dated 16 February 2021 the Director refused to allow the Applicant to make a subsequent claim upon finding that his claimed threats were related to the same dispute between his parents and their creditor as before which had all been duly considered in his previous claim, that there is no new evidence or information to consider otherwise, and that they did not constitute any significant change of circumstances to warrant allowing him to make a subsequent claim.       

17.  As Section 37ZR of the Ordinance does not provide any appeal to the Board against a refusal to allow a subsequent claim, the Applicant therefore on 1 March 2021 filed a Form 86 for leave to apply for judicial review of this decision of the Director, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that the decision was unfair and unjust but without providing any details or particulars or elaboration why it was so or any other proper grounds for his intended challenge, nor did he request any oral hearing for his application.

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19.  In the Applicant’s case, on the basis of his stated claim and the new materials and information provided by him in support of his request for a subsequent claim, the Director was in my view correctly to find that they were all related to the same claim as before and that they did not constitute any significant change of circumstances since his previous claim to justify making a subsequent claim, nor would they give the subsequent claim a realistic prospect of success.

20.  Furthermore, as it had been established by both the Director and the Board in their previous decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Vietnam that there was no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526, of which the Director was in the circumstances entitled to take into account under Section 37ZO(3) of the Ordinance in his decision (see [8(d)]) to refuse the Applicant’s request to make a subsequent claim.     

21.  In the premises and having considered both previous decisions of the Director and the Board as well as the Director’s later decision under the Applicant’s present challenge with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in any of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s previous claim or his later request to make a subsequent claim.

22.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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