VU THI TUYEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1698/2021

[2022] HKCFI 559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1698 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 23 November 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 63-year-old national of Vietnam who last entered Hong Kong illegally on 20 July 2015 and surrendered to the Immigration Department on 23 July 2015 when 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 debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Quang Yen, Quang Ninh, Vietnam. After leaving school she worked as a farmer in her home village, married her husband and raised a family of 4 children.

3.  In 2003 she divorced her husband, and continued to live with her children in her home village. In 2004 her youngest son killed a friend during a fight, and was subsequently sent to prison for 12 years, and as he was then a minor under her custody, the Applicant was also ordered by the court to pay a compensation to the victim’s family, for which she in 2010 borrowed a loan from a local money lender to be repaid within 2 years and with monthly interest payments.

4.  To meet her loan repayments the Applicant had to also work extra jobs, but by July 2012 when the loan became repayable, she was unable to do so, for which her creditor had sent men to threaten her, and after one occasion when she was knocked down by a motorcyclist and suffered serious injuries which required lengthy hospitalization, of which she suspected was masterminded by her creditor to harm her, she became fearful for her life and on 29 December 2014 departed Vietnam for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 4 July 2017 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 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”).

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 her creditor and his followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention of her creditor to seriously harm her other than to put pressure on her to repay her debts, that the incident involving the motorcyclist was just the Applicant’s own speculation without any supporting evidence, that in any event it was a private monetary dispute between her and her creditor 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 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.

7.  On 18 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but 6 weeks later on 30 August 2017 she in writing to the Board requested to withdraw her appeal as she considered it safe for her to return to her home country, and upon being satisfied that her application for withdrawal was freely sought and that she fully understood the consequences of the withdrawal, the Board by a letter dated 23 November 2017 directed that the Applicant’s appeal be withdrawn, and confirmed that her appeal had been disposed of and finally determined, and that no further action would be taken in respect of the appeal.

8.  However, more than 3 years later on 6 August 2021, the Applicant wrote to the Board to request to proceed with her appeal against the Director’s decision, and on 19 August 2021 the Board replied to confirm that her appeal had already been validly withdrawn by the decision dated 23 November 2017, that the decision to dispose of her appeal by withdrawal was final, and that no further action would be taken in respect of her appeal/petition.   

9.  On 15 December 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision which she dated 19 August 2021 which was as noted above the Board’s reply to her request to proceed with her appeal, and hence for the Applicant to challenge any substantive decision of the Board, it would in law be the earlier one made on 23 November 2017 which disposed of her appeal, and accordingly I shall consider the Applicant’s intended application as one to challenge that decision, and for which she put forth the following ground for seeking relief in her Form:

“The Torture Claims Appeal Board underestimated the injuries and cruel treatment and cruel treatment I had suffered in Vietnam which I should say it put me under imminent danger and threat to my life. Due to the same, I believed that my claims at least meet the criteria for CIDTP and/or BOR II.”

10.  In her supporting affirmation the Applicant also claimed to have been misled by an immigration officer into withdrawing her appeal to the Board while being detained by the Immigration Department in August 2017, and hence she now wants to apply for judicial review of the Board’s decision but without providing any details or particulars as to how she was so being misled, or why it had taken her so long to challenge that decision. 

11.  As by then the Applicant was clearly seriously out of time with her 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 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.

12.  As the last day of the three-month period for her to file her Form 86 against the Board’s decision of 23 November 2017 fell on 23 February 2018, and hence the Applicant was more than 3 years and 9 months late with her 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.  

13.  In the Applicant’s case, a delay of more than 3 years and 9 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that after withdrawing her appeal and her subsequent discharge from prison in May 2018, she was then repatriated back to Vietnam, but on 30 July 2020 she sneaked back into Hong Kong, and on 8 August 2020 she was arrested by police, and after she was referred again to the Immigration Department where she has since been detained at the Castle Peak Bay Immigration Centre (“CIC”), she decided to pursue with her former appeal to the Board against the Director’s decision, as she has been in Hong Kong for so many years that she just does not want to return to Vietnam.

14.  The Applicant has not produced any evidence to corroborate her bare assertions, but if indeed she was repatriated back to Vietnam in 2018 upon her release from prison, and which may explain the lengthy gap between then and now, it would be fatal to her non-refoulement claim as well as her appeal/petition to the Board, as Section 37ZF(1) of the Immigration Ordinance provides that such a claim whether pending final determination or substantiated must be treated as withdrawn if the claimant for whatever reason leaves Hong Kong, while subsection (2) also stipulates that such a claim treated as withdrawn must not be re-opened.        

15.  Accordingly, and on the Applicant’s own case of having left Hong Kong in 2018, her appeal/petition to the Board against the Director’s decision must be treated as withdrawn and must not be re-opened regardless of whether she had indeed been misled into withdrawing her appeal earlier in 2017 which resulted in the Board’s decision of 23 November 2017.

16.  As noted above, the Applicant has not provided any evidence in support of her such assertions, in particularly of her deportation from Hong Kong at that time, but even if she had in fact never left Hong Kong at the time as asserted, and as such her appeal would not be so treated as withdrawn, she has in my judgment still failed to establish to my satisfaction that she had indeed been misled into withdrawing her appeal in 2017 with just some bare assertions without any details or particulars as to how she had been so misled.

17.  In Re Das Purnima Rani [2019] HKCA 669, 13 June 2019, the Court of Appeal held in [41] that once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal, and that the non-refoulement claim rejected by the Director is finally determined when the appeal against it has been disposed of, as in the present case as stated in the Board’s decision of 23 November 2017.

18.  Furthermore, on the basis of the Applicant’s own case at the highest, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one arising from a private monetary dispute between her and her creditor without any official involvement, 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.                 

19.  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 the consideration and assessment of the Applicant’s non-refoulement claim by the Director, or in the Board’s decision to withdraw her appeal at her own request. Accordingly, I do not find any merits in the intended application either.

20.  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 her serious delay, I refuse to extend time and accordingly dismiss her 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