TRAN VAN CUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 691/2021

[2021] HKCFI 2790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 691 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;

1.  the application for extension of time for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 28 January 2021 refused; and

2.  leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Vietnam who entered Hong Kong illegally in March 2020 and was arrested by police on 17 April 2020.  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 creditors over his outstanding debts.

2.  The Applicant was born and raised in Kien Thuy District, Hai Phong, Vietnam.  After leaving school he engaged in farming in his home district, got married and raised a family with 2 children.

3.  In 2017 he established a fish farm by borrowing loans from three local money-lenders with monthly interest payments, but after a plague in 2018 which wiped out his fish stocks, the Applicant lost his business and was unable to make any loans repayments, and after having been threatened and beaten by men sent by his creditors, the Applicant feared for his safety and therefore departed Vietnam in March 2020 for China, and from there he later sneaked into Hong Kong, 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 18 June 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 31 July 2020 the Director of Immigration (“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”).

5.  In his decision 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 creditors upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditors to seriously harm or kill him other than to put pressure on him to repay his loans, that in any event they were private monetary disputes 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 98 million people spread across a vast territory of more than 330,000 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 his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditors to locate him.

6.  On 21 August 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 11 January 2021 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 28 January 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claimed fear of harm form his creditors being the reason for his departure of Vietnam for Hong Kong, but found in any event that his problems with his creditors if true are all private monetary disputes without any official involvement that state/police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by his creditors that his claim for non-refoulement protection failed on all applicable grounds.

8.  On 14 May 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decision because his life is still in danger in Vietnam and therefore he cannot return to his home country but without putting forth any proper grounds for his intended challenge, nor did he request any oral hearing for his application.

9.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judiciary review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

10.  As the last day of the three-month period for him to file his Form 86 fell on 28 April 2021, the Applicant was therefore more than 2 weeks late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

11.  In the Applicant’s case, a delay of 2 weeks must be considered as substantial, for which he has not provided any explanation, and while accepting that he has been detained at the Castle Peak Bay Immigration Centre (“CIC”) with the inevitable restrictions and inconvenience as to incoming and outgoing mails or accessing legal assistance, I do not find them justified his failure to file his Form 86 within the 3-month period, nor am I satisfied that there is any good reason for his delay.

12.  As for the merits, if any, of his intended application, as noted above the Applicant has not put forth any proper ground for his intended challenge either, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

13.  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.

14.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss 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