HOANG THI HONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 496/2023

[2023] HKCFI 1381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 496 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 9 November 2022 of the Director of Immigration (“the Director’s Decision”), which refused her application for a subsequent claim. Her application filed on 29 March 2023 is late. I shall deal with this issue below.

2.  The applicant is being detained by the Immigration Department and she did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

The applicant

3.  The applicant is a national of Vietnam. She surrendered to the Immigration Department on 5 October 2015 and admitted that she sneaked into Hong Kong on 4 October 2015 from Shenzhen by hiding under a lorry. She lodged her non-refoulement claim by way of written signification dated 5 October 2015. She claimed that, if refouled, she would be harmed or killed by a loan creditor Mr Phuc and his followers as she was unable to repay her debt of 200 million VND owed to him.

The Director’s Decisions

4.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.  By way of the Director’s Notice of Decision dated 6 September 2016, the Director dismissed her application on the Torture risk, the BOR 3 risk and the Persecution risk.

6.  The Director invited the claimant to supply additional information in support of her claim under the BOR 2 risk. The applicant did not respond to the Director’s request.

7.  In the Notice of Further Decision dated 7 March 2017, the Director dismissed her claim on BOR 2 risk.

The Board’s Decision

8.  The applicant appealed the Director’s Notice of Decision and Notice of Further Decision to the Board.

9.  On 21 July 2017, the applicant was convicted of the offences of using a forged identity card and taking employment, for which she was sentenced to 15 months’ imprisonment.

10.  On 25 May 2018, she attended the Board hearing and withdrew her appeal. The Board confirmed the Director’s decisions. She was repatriated to Vietnam on 20 June 2018.

Application for subsequent claim

11.  On 9 May 2022, the applicant was intercepted by the staff of the Immigration Department and was convicted of the offence of illegal remaining in Hong Kong, for which she was sentenced to 15 months’ imprisonment. At present, she is being detained in Castle Peak Immigration Centre.

12.  By a letter dated 9 September 2022, the applicant applied to the Director for making a subsequent claim. She was legally represented and her statement of additional information was submitted to the Director by her legal representative.

13.  Having considered the additional information submitted, the Director rejected her application for a subsequent claim for the reasons that although she had incurred new debt from another creditor in Vietnam and she was unable to repay the loan, thus chased by the loan-shark and her subordinates, the loan dispute between her and her new creditor is still private in nature and there is no indication that she is a target of the Vietnamese authorities or the state was involved. Therefore, the new debt does not amount to a significant change of circumstances of her case, warranting her making of a subsequent claim. Similar issues such as state protection and internal relocation in her previous claim, which had been considered by the Director, are also applicable to her subsequent claim. There is no new and substantial evidence to show that there is significant change of circumstances since her previous claim was finally determined.

14.  The Director therefore does not accept that there has been a significant change of circumstances since her previous claim was finally determined; and the change, when taken together with the materials previously submitted in support of her previous claim, would give the subsequent claim a realistic prospect of success. The Director rejected her subsequent claim application.

Application for leave to apply for judicial review of the Director’s Decision

15.  The applicant has filed Form 86 on 29 March 2023 for leave to apply for judicial review of the Director’s Decision.

16.  In her affirmation in support of her application, the applicant has only attached the Director’s Decision without specifying any ground.

DISCUSSION

17.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of her application is on 9 February 2023. The delay is more than 6 weeks. She has given no explanation for her delay and her application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

20.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.  The applicant was legally represented when she made her application for her subsequent claim. The immigration officer had considered the additional information in support of the applicant’s subsequent claim. The immigration officer takes the view that although she had returned to Vietnam after she had withdrawn her appeal of the Director’s decisions in her previous claim to the Board and had incurred another debt from another creditor in Vietnam, the nature of her subsequent claim is similar to her previous claim in that it is a personal monetary dispute without state involvement and that state protection and internal relocation are available to her.

22.  It is clear that the Director has adopted the nature of the core issues in support of the applicant’s previous claim and subsequent claim to determine whether there has been any change of circumstances in support of her subsequent claim. I agree with the Director.

23.  Section 37ZO (2) provides:

“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.”

24.  It is important to note that the significant change has to be such that when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success. In this application, the immigration officer had taken the issues of the debt from a loan shark, whether the state was involved in the transactions, state protection being available to the applicant and internal relocation being a viable alternative to alleviate her risk if she returns to Vietnam. All of these are the same issues for the applicant’s previous claim and her subsequent claim.

25.  The Court does not find any error of law or procedural unfairness in the Director’s Decision. The findings of the Director are not in any respect open to challenge as Wednesbury unreasonable or irrational.

26.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

27.  Therefore, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Director’s Decision. Accordingly, I dismiss her 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