LE VAN CAN v. DIRECTOR OF IMMIGRATION

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 22 September 2023 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all the applicable grounds and that he never lodged any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions.   

2.  The Applicant is a 39-year-old national of Vietnam who first entered Hong Kong illegally on 10 January 2016 and was arrested by police on 6 February 2016.  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 creditor for failing to repay his debts.

Previous Non-Refoulement Claim          

3.  By a Notice of Decision dated 29 August 2016 and a Notice of Further Decision dated 30 December 2016 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 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 and associates 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 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 his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

5.  The Applicant never brought any appeal to the Board against either decision of the Director, and subsequently on 16 November 2017 he was repatriated to Vietnam.

Request To Make Subsequent Claim

6.  More than 5 years later on 22 June 2023 the Applicant sneaked back into Hong Kong again and was arrested by police on 30 June 2023.  After he was referred to the Immigration Department for investigation, he in writing requested to make a subsequent claim on the basis that upon his repatriation to Vietnam in 2017, as he was still unable to repay his same debts as before, his creditor again sent men to threaten and beat him, and after a severe beating in February 2019 when he suffered serious head injuries, he feared that eventually he would be killed by his creditor, and so on 20 June 2023 he again departed Vietnam for China, and on 22 June 2023 he again sneaked into Hong Kong to make another claim for non-refoulement protection.     

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, the Director on 14 July 2023 in writing required the Applicant to provide further information and evidence in writing in support of his request within 14 days, but which he subsequently never did despite repeated reminders by the Immigration Department for him to do so.     

9.  By a Notice of Decision dated 22 September 2023 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 he failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been a 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 claim of the availability of both state protection and internal relocation to similarly negate whatever risk that may arise from his intended subsequent claim based essentially on the same facts and risk of his previous claim.

10.  On 11 December 2023 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 killings 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 their non-refoulement claims;

(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.            

11.  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 take proper account of the relevant COI in the assessment of his subsequent claim.  As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant, nor was he able to do so at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge.                         

12.  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