Case Detail

HCAL 1658/2021

[2022] HKCFI 2793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1658 OF 2021

____________

RE:

DINH KHAC NAM

Applicant

____________

Before: Deputy High Court Judge To in Chambers

Date of Decision: 16 September 2022

______________

D E C I S I O N

______________

Introduction

1. This is the Applicant’s application by summons filed on 23 June 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge P Li (“DHCJ P Li”) dated 24 March 2022 (the “Order”) refusing him leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) dated 28 May 2021 refusing his request to make a subsequent claim under section 37ZO(2) of the Immigration Ordinance (Cap 115).

2. By way of background, the Applicant had made a previous claim for non-refoulement protection in 2014 based on his fear of being harmed or killed by his stepfather and moneylender. His claim was dismissed by the Director, primarily because there was no genuine and substantial risk of ill-treatment or arbitrary deprivation of life; and that reasonable state protection and internal relocation were available to mitigate the harm and risk. He was repatriated to Vietnam on 31 October 2017. He sneaked into Hong Kong again in November 2020 and made a request to file a subsequent claim based on his fear of being harmed or killed by another moneylender arising from his inability to repay another loan. The Director refused his request because there was no substantial change in the availability of state protection and internal relocation options since his previous claim was determined. The Applicant sought leave to apply for leave to apply for judicial review of that decision of the Director (the “leave application”). His leave application was refused by DHCJ P Li. He now seeks extension of time to appeal DHCJ P Li’s Order.

3. Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. In Jagg Singh and Torture Claims Appeal Board / non-Refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

Length of delay and reasons for the delay

4. By 23 June 2022 when the Summons was filed, three months had lapsed since the date of the Order. The application is two and half months out of time. In his supporting affirmation, the Applicant made a bare assertion that he had not received the Order and he did not furnish any ground of his intended appeal. The Court noted that the address he gave in his Summons is the same as the address to which the Order was sent, ie Castle Peak Bay Immigration Centre. To assist him in presenting a proper case for extension of time, this Court gave them directions by letter dated 14 July 2022 to file a statement within 14 days of the letter setting out (a) the date and circumstances when the Order was brought to his attention and invited him to exhibit supporting evidence, such as a copy of the relevant entry in the Prisoners’ Incoming Mail Register from Castle Peak Bay Immigration Centre; and (b) the grounds of his proposed appeal.

5. As at the date of this decision, the Applicant has not responded. The court staff are under very strict instructions to ensure that court orders are issued on the date as stated in the orders. The delivery service of Hong Kong Post is usually very reliable. The detention facilities of the Immigration Department have records of receipt and delivery of its detainees’ mails. The Applicant’s attention had been drawn to the existence of such records to support his allegation. His failure to respond suggests there is no truth in his allegation of non-receipt. He has no explanation for a very substantial delay.

Prospect of success of the intended appeal

6. In his supporting affirmation, the Applicant made a bare allegation that “the decision made by DHCJ P Li has been reached unfairly without allowing [him] an opportunity to clarify [his] case and situation in my country”. The Form Call-1 indicates clearly that the Applicant attended the hearing before DHCJ P Li, sought leave to produce additional evidence, namely a covering letter and two documents, and made submissions. The court record also indicates that he had exchanges with the bench. I have listened to the record of proceeding. DHCJ P Li invited the Applicant to make submissions three times. In response to the first invitation, the Applicant repeated his case that he will be killed and sentenced to death pursuant to Article 251 of the Vietnamese Criminal Code. In response to the second invitation, he confirmed that he had no complaint against the Director or anybody else and that he only urged to be allowed to stay in Hong Kong for refuge. In response to the third invitation, he replied that he had nothing else to submit. His complaint of procedural unfairness is a pure fabrication without any factual basis.

7. Despite the Court’s specific request for the grounds of his intended appeal, the Applicant did not respond. The inference is that he has no arguable grounds of appeal. Without even knowing what his grounds of appeal are, it is very difficult to assess the prospect of success of the intended appeal.

8. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-maker in a request for filing a subsequent non-refoulement claim is the Director. He alone assess the evidence and find facts including whether there has been a significant change of circumstances since the previous claim was finally determined and whether the change, together with the material previously submitted, would give the subsequent claim a realistic prospect of success as required by section 37ZO. In a judicial review of that decision, the court will scrutinize the Director’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2]. Thus, in the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review and in an application to appeal that decision out of time, the best the court can do is to re-assess that decision focusing on the above vitiating elements.

9. I have rigorously re-examined the Form Call-1, the Director’s decision, the papers and the evidence with anxious scrutiny. I am satisfied that the Director had correctly set out the law and key legal principles relating to the making of a subsequent claim; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness. I am satisfied that the Director’s decision has not been so vitiated. On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

10. The prejudice to the proposed respondent and to public administration is obvious, if his application is allowed. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. Despite having been given a last opportunity to furnish his grounds of appeal, the Applicant has failed to do so. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

11. For the above reasons, the application for extension of time to appeal is refused.

( Anthony To )
Deputy High Court Judge

The applicant is not represented

[1] CAMP 64/2020; [2020] HKCA 844

[2] [2018] HKCA 524 at paragraph 14(1)

HCAL 1658/2021

[2022] HKCFI 838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1658 of 2021

BETWEEN

	Dinh Khac Nam	Applicant
	and
	Director of Immigration	Putative Respondent

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 submission by the Applicant in open court;

Order by Deputy High Court JudgeP. Li:

1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1. The applicant was arrested by the police on 23/11/2020. He was convicted on 7/1/2021 and imprisoned for a total of 18 months for various offences.[1] He filed his non-refoulement claim on 29/3/2021.

2. According to the record of the Immigration Department, the applicant had last sneaked into Hong Kong on 29/11/2013. He surrendered to the Immigration Department on 15/1/2014. He filed a non-refoulement claim on 9/4/2014. This claim was rejected by the Director on 30/5/2016 and 19/12/2016 [2]. After serving his sentence for unlawful remaining in Hong Kong, he was repatriated to Vietnam on 31/10/2017.

The non-refoulement claim in 2014

3. The applicant was born on 25/6/1994. He was born in My Son Village, Hai Phong City, Vietnam. He was single. His family was in Vietnam. He had education for 12 years. He had no working experience. He had not joined any political parties.

4. In early 2013, he could not find any job. His step-father forced him out of home. He stayed with his friend sometimes. He borrowed 200 million VND from a money lender for daily expenses and betting on soccer.[3] The monthly interest was 10%. He lost all the money in mid-2013.

5. He attempted to steal money from home to repay his debt. His step-father stopped him and attacked him with a knife. He escaped and stayed around the home village. Nothing happened to him. Later at the end of October 2013, while he was walking on the street of the home village, several unknown men alighted from a car and chased after him. They were armed with sticks and knives. He managed to run away to his friend’s home. It was far away from home. He thought these men were sent by the money lender or his step-father. Nothing happened to him until he left Vietnam.

6. On 25/11/2013, he travelled by boat to China. He later sneaked into Hong Kong. He last contacted his mother on 16/11/2013. His mother told him that some people came round and looked for him at his home.

7. Internal relocation was not viable as the money lender would be able to locate him. The police would not intervene as it was a private matter.

The decision of the Director of Immigration dated 30/5/2016

8. The Director concluded that the risk of harm from his step-father and the money lender was low. The Director dismissed the claim on 30/5/2016 for the following reasons:

(a) The applicant left home in 2013. Though he claimed his relationship with his step-father was poor all along. He was often beaten. He had never tried to leave home because of this. Even during the incident in which he tried to steal from home, he managed to escape. There was no serious injury which amounted to a minimum level of severity.
(b) As to the money lender who allegedly sent several men to chase after him in October 2013, he managed to escape. There was no injury at all.
(c) His step-father had not continued to trace him after he left home. His step-father did not trace him even after the attempted stealing from home. These demonstrated that there was no intention to kill him.
(d) The money lender took no further action to trace him or attack him. He was safe until he left Vietnam. There was no evidence that the money lender escalated his threat. These circumstances showed that there was no intention to kill.
(e) There was no evidence that any official was involved. He had not reported the incidents to the police.
(f) The Director pointed out that public officials and the police in Vietnam had violated the law with impunity. There was serious corruption problems and political influence on the police. There was lack of transparency and media freedom. However, the government had publicised budgets, streamlined inspection measures and publicised cases of corruption involving officials. These were efforts to put pressure on local officials. The Central Steering Committee on Anti-Corruption were given more power to fight corruption. There was new law against domestic violence. News reports revealed prosecutions of officials and police officers for corruption offences. Actions were taken against illegal debt collection. The Director found that the Vietnam government had the determination to tackle malpractices and misconduct of the police. There was no evidence that the police were unwilling or unable to take action. There was reasonable State protection.
(g) Internal relocation was permissible under the law in Vietnam which was a large country with a population of about 95 million. It was not unduly harsh for the applicant to relocate to Ho Chi Minh City given his age.

9. There was no genuine and substantial risk of ill-treatment or arbitrary deprivation of life if he returned to Vietnam. The claim under BOR 2 and 3 were not substantiated by the evidence.

10. The ill-treatment to the applicant by the money lender arose from a loan dispute. His situation was not within the ambit of ‘persecution’ as defined under the Refugee Convention. The claim of persecution risk failed.

11. There was no severe pain or suffering amounting to ‘torture’ as defined under s.37U (1) of the Immigration Ordinance. The conduct of the money lender was not instigated by any public officials or under their acquiescence. The applicant was not targeted by the Vietnam government. The torture claim failed.

12. On 19/12/2016, the Director further dismissed the claim based on BOR 2 risk. There was no further update from the applicant despite the invitation from the Director.

13. The applicant did not file any appeal to the TCAB in relation to both decisions. He was repatriated on 31/10/2017.

The non-refoulement claim in 2021

14. The applicant sneaked into Hong Kong again in November 2020. He filed the present subsequent claim on the following grounds:

(a)   His debt raised in 2013 was cleared. However, he raised another loan of 400,000,000 VND from another creditor (“Pham”) to start his seafood business. He used his grandparents’ house as collateral.
(b)   His business was smooth in June 2019. However, in late 2019, his business was at a loss due to the pandemic. Pham demanded him to repay within 3 months. After 3 months in September 2020, he was beaten up by Pham and his men as he was unable to repay. Pham also threatened to kill him.
(c)   Despite the pain, he left the hospital and left Vietnam for Hong Kong with the assistance of his friends in October 2020.

15. The Director pointed out that the fear arose from failure to repay a loan albeit a different money lender. However, there was no substantial change in State protection and relocation options since the last claim was determined. Taking into consideration all the material, there was no realistic prospect of success in the intended subsequent claim. The Director refused to process the subsequent claim on 28/5/2021.[4]

16. A hearing was fixed on 8/2/2022 before this court. The applicant asked this court to consider the additional evidence submitted by him in a letter dated 21/12/2021 and the attached document. He had no further complaint.

17. In his covering letter, the applicant asserted that he was unable to repay the debt of 400,000,000 VND due to outbreak of Covid-19 pandemic. He was bankrupt. He was assaulted in September 2020 for failing to repay. The triad colluded with the police to falsely accused him of illegal trading in narcotic substance. He would be sentenced to life imprisonment or death according to article 251, clause 4, of the Vietnamese Penal Code. He sought temporary refuge in Hong Kong.

18. The applicant submitted 2 documents which purported to be evidence of the prosecution.

(a) One document is entitled ‘DECISION TO PROSECUTE THE ACCUSED’. It was dated 21/7/2020 signed by Deputy Chief of the CSDT of Hai Phong City. This was the decision to prosecute the accused for illegal trading of narcotics substance. It was sent to the People’s Procuracy for approval.
(b) The other document is entitled ‘DECISION TO APPROVE THE DECISION TO PROSECUTE THE ACCUSED’ dated 21/7/2020. This was the approval to prosecute the accused for illegal trading of narcotics substance. It also approved the police to investigate according to the criminal Procedure Code. This document was signed by the Deputy Chief Prosecutor of Hai Phong City.

19. I have the following observations in relation to the additional documents submitted by the applicant:

(a)   In his request for subsequent claim dated 29/3/3021 and 4/5/2021, the applicant had not mentioned the collusion between the triad and the police to prosecute him for illegal trading of narcotics substance.[5] The approval to prosecute was dated 21/7/2020, the applicant should have been informed of the prosecution by 2021. It is unreasonable that he did not mention this in his request for subsequent claim.
(b)   There was no explanation why he did not attach the 2 documents when he made the request for subsequent claim. There was no explanation as to the source of these documents. It appeared they were internal documents between the police and the prosecutor. There is no explanation how the applicant could obtain them.
(c)   According to the applicant, he was initially given 3 months to repay. He failed after the deadline and was assaulted in September 2020. However, the decision to prosecute was dated 21/7/2020. It was well before the deadline for repayment. The assertion that he was framed up, after he failed to repay, was implausible.
(d)   Assuming the 2 documents were formal, there was no mention about the kind of narcotics and the amount involved. This information is essential to determine the gravity of the offence.

20. Given the above, I do not find those documents authentic or reliable. I reject the assertion that the applicant would be subject to prosecution as stated in the 2 additional documents.

21. Section 37ZO (2) requires the applicant to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined. The change, together with the material submitted previously, would give the subsequent claim a realistic prospect of success.

22. The Director has correctly pointed out that there was no evidence that State protection and relocation has changed since the previous determination. There was no significant change of circumstances. The subsequent claim is not substantiated.

23. This court agrees with the decision of the Director dated 28/5/2021. There is no error of fact and law. The decision is reasonable. This court refuses leave for the intended judicial review.

Dated 24^th day of March 2022

(Mike Mak)
for Registrar, High Court

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

Notesfor the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 24 March 2022 Dinh Khac Nam Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24 March 2022 Director of Immigration Putative Respondent’s ref. no.: QA T/C 2130/15 & RBCZ 9000637/16 (Formerly RBCZ 3000867/14); and L/M (23634) in ImmD RA 7/37/C Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Breach of deportation order, illegal remaining in Hong Kong and theft.

[2] The former decision was on BOR 3, persecution risk and torture risk. The latter decision was on BOR 2.

[3] VND=Vietnamese Dongs. It was about HKD 80,000.

[4] Section 37ZO (1) & (2), CAP. 115.

[5] Decision of the Director dated 28/5/2021, §11.

DINH KHAC NAM v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

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Files (2)

	consideration of the documents only; or
	consideration of the documents and oral submission by the Applicant in open court;