NGUYEN THI THU v. TORTURE CLAIMS APPEAL BOARD

HCAL 753/2018 and
HCAL 943/2020
(Consolidated)

[2020] HKCFI 1138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 753 of 2018

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 943 of 2020

     Application for Leave to Apply for Judicial Review

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

Following:

1.  HCAL 943/2020 be consolidated with HCAL 753/2018;

2.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 5 January 2018 refused; and

3.  leave to apply for Judicial Review dismissed.

It is further directed that:

4.  if the Applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

5.  when filing the application for leave to appeal, the Applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

6.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

7.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

8.  liberty to apply.

Observations for the Applicant:

1.     The Applicant is a 37-year-old national of Vietnam who entered Hong Kong illegally on 15 August 2015, and on 17 August 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim.

2.     The Applicant was born and raised in Hung Vuong, Hong Bang, Hai Phong, Vietnam.  After leaving school she worked various odd jobs, got married and gave birth to a daughter.

3.     In 2013 she divorced her first husband, and later in the same year she married again and moved to live with her second husband in An Duong Town, An Duong District, Hai Phong where she subsequently gave birth to a son.

4.     In 2014 she decided to start up a clothing retail store by borrowing a loan from a local loan shark repayable within two years with monthly interest payments until discharge of the loan.

5.     However, her business did not turn out profitable, and starting in July 2015 she was unable to keep up with her loan interest payments to the loan shark who then sent his men to make verbal threats against her and vandalized her shop.

6.     As the Applicant became fearful for her life, she therefore departed Vietnam on 10 August 2015 for China, and from there she sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 2 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.     By a Notice of Decision dated 15 March 2017 the Director of Immigration (“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 (“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”).

8.     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 her creditor and his men upon her return to Vietnam as low due to the low intensity and frequency of past ill‑treatment from them, that it was a private monetary 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 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 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 to locate her.

9.  On 29 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 14 December 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 5 January 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted the Applicant’s claim of having been threatened by her creditor but found that with state/police protection available to her if needed as well as reasonable internal relocation within Vietnam available for her to move safely to other area away from her home district without risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.   

11.  On 2 May 2018 the Applicant filed her Form 86 under HCAL 753/2018 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely asked for more time to remain in Hong Kong until her problem in Vietnam has been resolved without putting forward any proper grounds for her intended challenge.  Nor did she request any oral hearing for her application.

12.  However, before her application could be dealt with by the court, the Applicant on 20 May 2020 filed another Form 86 under HCAL 943/2020 again for leave to apply for judicial review of the Board’s decision, and again she did not put forward any ground for seeking relief other than just stating in her supporting affirmation that her appeal was rejected improperly but without providing any particulars or elaboration why it was so.  As such and to save time and cost, I therefore consolidate the two proceedings to be dealt with together.

13.  The Applicant was however also out of time even with her first application, as Order 53 Rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial 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.

14.  As the last day of the three month-period for her to file her Form 86 fell on 5 April 2018, the Applicant was therefore about one month late with her first 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: see AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of one month cannot be said to be insignificant, for which she did not provide any explanation.  As the record shows that the decision was sent on the same day to her last reported address which was also the same address as stated in her Form 86 and without having been returned through undelivered mail, I fail to see any good reason which she could have provided for her delay.      

16.  As for the merit of her intended challenge, as noted above the Applicant has failed to put forward any proper or valid ground for her intended challenge in either of her applications.  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 or her 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.   

17.  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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

18.  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.

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

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