BUI DUC HIEN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 788/2022

[2023] HKCFI 953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 788 of 2022

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 4 May 2022 be refused; and

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

Observations for the Applicant:

1.   The Applicant is a 31-year-old national of Vietnam who entered Hong Kong illegally on 17 April 2020 and was arrested by police on 8 May 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 creditor and associates. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ngu Lao, Thuy Nguyen, Hai Phong, Vietnam. After leaving school he worked as a farmer and later a construction worker, got married and raised a family with 2 children in his home district.

3.  One day in September 2019 while driving a vehicle with his family, the Applicant knocked down and injured a motorcyclist in a traffic accident, and to whom he was subsequently required to pay a compensation by borrowing a loan from a local money-lender repayable within 2 months with interest, but later when he was unable to repay his loan, his creditor sent men to threaten him and his family.

4.  One night when those men again came to his home but this time were carrying choppers and other weapons, the Applicant became fearful for his life and fled from the back door of his house to hide in a relative’s home in Minh Duc, and on 15 April 2020 he departed Vietnam 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 11 November 2020 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 21 December 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his creditor and associates upon his return to Vietnam due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to have any real intention to seriously harm or kill him other than to press him for repayment of his loan, that in any event 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 (“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 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 the country away from his home district in large cities such as Hanoi or Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, of which it is not clear from the Board’s decision as to when exactly did he do so as it was marked on his Notice of Appeal as received by the Board on two different dates namely 4 January 2021 and 31 May 2021, as if it were filed on the former date it would be within the 14-day period required by Section 37ZS(1) of the Immigration Ordinance for the filing of notice of appeal, but not so if on the latter date as was so stated in the Board’s decision, but for which the Board did not explain why such late filing was allowed despite a delay of more than 5 months, but in any event the Applicant was allowed to proceed with his appeal and attended an oral hearing on 30 December 2021 before the Board during which he gave evidence for his appeal and answered questions raised of his claim by the Adjudicator for the Board. On 4 May 2022 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found serious inconsistencies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim or that his claimed risk would materialize upon his return to Vietnam as alleged, and that in any event in the absence of any evidence of state or official involvement in what was essentially a private monetary dispute between him and his creditor that state or police protection as well as reasonable internal relocation would be available to him to move safely to other part of the country away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 17 August 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the decisions of both the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Director and the Board reached the decisions wrongly in assessing the Applicant’s non-refoulement claim in that their decisions were not reasonable or fair as required by the Wednesbury test in failing to recognize that the right to life must be protected by criminal law from extra-judicial killings that the Applicant may face if deported back to his home country;

(2)  That the Adjudicator failed to give the Applicant sufficient time and opportunity to arrange for relevant evidence for his non-refoulement claim and appeal;

(3)  That the Director failed to appreciate or give proper weight and importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)  That the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give enough weight to such evidence and instead ruled otherwise against the Applicant which is a clear case of unfair attitude shown by the director which in itself is enough to render the decision void;

(6)  That the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organization had compiled reports on the matter which stated testament to the Applicant’s assertions and hence the Director failed to attain high standard of fairness required by Wednesbury test in the decision which should be considered unreasonable in the scope of public law.

10.  By then the Applicant was however already 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 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.

11.  As the last day of the 3 month-period for him to file his Form 86 fell on 4 August 2022, the Applicant was therefore some 13 days 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 13 days may not be considered as substantial, for which he did not provide any explanation in his Form or affirmation, and at the hearing of his application he explained that he was then being detained at Castle Peak Bay Immigration Centre (“CIC”) and did not know how to make his application until later when he was able to seek legal assistance.

13.  The record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, and even accepting that the Applicant had indeed been detained at CIC, in the absence of any further details or evidence from him to corroborate his assertions, I am not satisfied that being detained at CIC would justify his delay given that he already had had some 3 months to file his application, but given the relatively insubstantial of his delay, I propose to focus on the merits or prospect of his intended application.

14.  However, those grounds put forward by the Applicant as stated above are all just some broad and vague assertions of his containing a few key words or phrases but without the necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Director or the Board had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were State Acquiescence and extra-judicial killings to his claim, or since when had he ever been tortured at the behest of law enforcement agencies or politicians when even on his own case at the highest that his alleged risk arose from a private monetary dispute with his creditor without any state or official involvement. As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or any merits in his intended application.

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 Board rejected his claim essentially on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 11 – 18 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if true 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.

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 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