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Nguyen Thi Ha v Director Of Immigration [Decision On Leave Application]

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date16 September 2021
Neutral Citation[2021] HKCFI 2795
Year2021
Judgement NumberHCAL1127/2021
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1127/2021 NGUYEN THI HA v. DIRECTOR OF IMMIGRATION

HCAL 1127/2021

[2021] HKCFI 2795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1127 of 2021

BETWEEN

Nguyen Thi Ha 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 submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

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 (“Director”) dated 13 July 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her earlier claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2. The Applicant is a 47-year-old national of Vietnam who first entered Hong Kong illegally on 1 August 2014 and was arrested by police on 5 August 2014. 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 outstanding loan obtained earlier for her inn business and/or by her husband who blamed her for the threats and harassments caused to the family due to her debts problem.

Previous Non-Refoulement Claim

3. By a Notice of Decision dated 29 August 2016 and a Notice of Further Decision dated 20 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 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 decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be harmed or killed by her creditor or her husband upon her return to Vietnam due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm her other than to put pressure on her to repay her loan or of her husband other than his frustration due to her debts problem, that in any event it was a private monetary or domestic 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 310,000 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 Vietnam 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 or her husband to locate her.

5. The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 30 August 2018 after hearing her in evidence and submissions and upon finding no merits in her...

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