LE VAN NAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 652/2021

[2024] HKCFI 1745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 652 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 the Applicant in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 16 July 2018 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 25-year-old national of Vietnam who entered Hong Kong illegally on 26 June 2015 and surrendered to the Immigration Department on 8 July 2015 when he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Thuy Nguyen District, Hai Phong, Vietnam. After leaving school he worked as a farmer and manual labourer in his home district to make his living.

3.  In 2014 he became addicted to gambling especially on football matches by relying on loans borrowed from a local money-lender, and on one occasion he borrowed a particularly large loan for gambling on a series of play-off matches, but after he lost all the money and was unable to repay his loan, his creditor started to send men to threaten and beat him, and after one particularly violent beating that he suffered cuts and bruises all over his body that he was subsequently brought to the local hospital for treatments.

4.  Upon his discharge from hospital, the Applicant became fearful for his life, and fled from his home district to hide in his sister’s home in another town, and on 24 June 2015 he departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 8 December 2016 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”).

6.  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 creditor and followers 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 them 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 95 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 areas 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.

7.  On 20 December 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 13 June 2018 before the Board without any explanation or any response to the Board’s subsequent request to provide his explanation for his non-attendance or any request for another hearing, whereupon the Board proceeded to deal with his appeal in his absence and on paper. On 16 July 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board did not take issue with the Applicant’s claim of problems with his creditor over his outstanding debts but found that it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 7 May 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward one single ground for his intended challenge: That the Board underestimated the injuries and cruel treatments that he had suffered in Vietnam and which put him in imminent danger and threats to his life that his claim at least met the criteria for CIDTP and/or BOR 2 grounds.

10.  By then the Applicant was however seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 16 October 2018, the Applicant was therefore more than 2 ½ years 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 HKC 393.

12.  In the Applicant’s case, a delay of more than 2 ½ years must be considered as extremely substantial and inordinate, for which he explained in his supporting affirmation that he never received the Board’s decision in the mail, and it was only later in April 2021 when he was informed of the decision, but by then he was already out of time with his application.

13.  The record shows that the Board’s decision was sent on the same day of 16 July 2018 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any further details or evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good or valid reason for his such serious delay.

14.  As for the merits, if any, of his intended application, this single ground put forward by the Applicant is just some bare and vague assertion without any necessary or relevant particulars or specifics or elaborations as to how it applies to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board underestimate the risk and danger that he may face from his creditor, or how would the BOR 2 ground be engaged in his claim when on the factual basis of even his own case was a private monetary dispute between him and his creditor which clearly did not engage the BOR 2 ground on its limited scope. As such, and given the Board’s correct findings of the availability of both state protection and reasonable internal relocation to negate any such risk as claimed by the Applicant upon his return to Vietnam, I do not find this ground of reasonably arguable for his intended challenge or that it would assist or advance his case any further. As such I do not find any merits in his intended application either.

15.  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.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real 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.

17.  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.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and the absence of any good reason for his such serious 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