PHAM VAN LUAN v. ORTURE CLAIMS APPEAL BOARD

HCAL 1446/2018

[2021] HKCFI 1201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1446 of 2018

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.  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

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

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Vietnam who entered Hong Kong illegally on 27 April 2016 and was arrested by police on the following day. 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 for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Tan Phong, Kien Thuy, Haiphong City, Vietnam. After leaving school he worked as a machine operator in his home district.

3.  In 2015 he decided to start a clams rearing business by borrowing a loan form a local money-lender with monthly interest payments until the discharge of his loan.

4.  However, in December 2015 a disease wiped out his clams and as a result he lost his business and was unable to repay his loan, and after being beaten by men sent by his creditor and with death threats made against him, the Applicant on 25 April 2016 departed Vietnam for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 March 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 28 April 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 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 or his men 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 creditor to seriously harm or kill him other than to put pressure on him to repay his loan, that in any event it was a private personal 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 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 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.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend an oral hearing scheduled on 23 November 2017 before the Board, and in the absence of any response from him to the Board’s subsequent request for his explanation as to his non-attendance, the Board proceeded to deal with his appeal in his absence and on paper. On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found many questions regarding the Applicant’s claim and vital to the determination of his credibility remained unanswered by his absence from the oral hearing, but concluded on the basis of the material before the Board that in the absence of any official involvement in what was essentially a private personal monetary dispute between the Applicant and his creditor that state protection would be available to him upon his return to Vietnam that his claim for non-refoulement protection failed on all applicable grounds.  

9.  On 23 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that it was unreasonable and unfair for the Board not to schedule another oral hearing for his appeal after he failed to attend the first hearing as he did not receive the notice in the mail;

(2) that it was irrational of the Board to assess the risk of the Applicant being harmed or killed by his creditor as low notwithstanding the clear evidence of threats from his creditor that he would be killed if he still failed to repay his loan;

(3) that it was unreasonable to find that the Applicant failed to answer the Board’s queries when it refused to schedule another oral hearing to enable him to do so;

(4) that it unreasonably relied on those COI which did not show the true situations in Vietnam especially as to the corruptions and inefficiencies of its government; and

(5) that the Applicant now has small children in Hong Kong including a daughter that has serious medical condition which requires medical care and treatments in Hong Kong.  

10.  The Applicant was however by then 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 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 three-month period for him to file his Form 86 fell on 5 April 2018, the Applicant was therefore 3 ½ months 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 3 ½ months must be considered as substantial or excessive, for which he did not provide any explanation either in his Form or his supporting affirmation, although he did do so for his failure to attend the oral hearing before the Board as he never received the notice of hearing sent to the building where he lived with many other co-tenants but with only one mail box that mails were often misplaced or got lost.

13.  Even assuming that was also the case with the Board’s decision being lost or misplaced and did not reach the Applicant, and there is no evidence to that effect before me, but there is still no explanation from the Applicant as to how he eventually came to learn about the Board’s decision of which he now seeks leave to apply for judicial review. As such and as the record shows that the Board’s decision was sent on the same day to his last reported address and the same as stated in his present application, I do not find any good or valid reason for his substantial delay.

14.  As for the merits, if any, of his intended application, I refer to those proposed grounds of the Applicant, of which Grounds (1) and (3) concern his complaints about the Board failing to schedule another oral hearing for his appeal after he did not appear at the originally scheduled hearing, and which can be considered together.

15.  As noted above, the Applicant in his affirmation provided an explanation that he never received the notice of hearing in the mail from the Board and hence was not aware of the hearing, but even assuming that was indeed the case, the Board’s decision revealed ([18]-[19]) that attempts were also made by the Board’s secretariat to contact the Applicant by telephone both before and after the scheduled hearing but to which the Applicant did not in his affirmation provide any response or explanation.

16.  The Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 has laid down the principles on whether the Board is required to hold an oral hearing, and ultimately it is a question of fairness whether or not there should be one.

17.  Whilst it is true that the Adjudicator did intend in the scheduled oral hearing to raise various questions with the Applicant which she regarded as vital in the determination of his credibility and which remained unanswered in his absence [77], she did emphasize that she would not draw adverse inference against him for his absence, and proceeded to rely the other evidence before the Board to conclude that he will not face any real risk of harm or life danger if refouled to Vietnam including the relevant COI as to state protection and internal relocation being available to him.

18.  In my view, the fact is that even on his own case at the highest, and as found by both the Director and the Board on the basis of his NCF and his screening interview before the Director with legal representation, the Applicant’s claimed fear of harm arose solely from a private personal monetary dispute with his creditor without any official or state involvement that the Board was entitled to find, and correctly, that his claim to have failed under any of the applicable grounds, and that even in his present application now before me, the Applicant has not explained what further or additional facts or evidence that he would have put before the Board at an oral hearing that could advance his claim under any of eth applicable grounds. As such and in the absence of any evidence to suggest that the Applicant has suffered any real prejudice from the lack of any oral hearing for his appeal before the Board, I do not find Grounds (1) or (3) reasonably arguable for his intended challenge.      

19.  As for his complaint under Ground (2) about his claimed fear of harm from his creditor, as already noted and explained above, even if it were wholly accepted by the Board without reservation, given the availability of state protection and reasonable internal relocation, this ground would not assist or advance the Applicant’s case any further, nor would it be reasonably arguable for his intended challenge of the Board’s decision.

20.  Regarding his complaint in Ground (4) over the COI relied upon by the Board, or by the Director for that matter, the Applicant failed to provide any particulars or specifics as to which COI that did not show the true situations in Vietnam, and more relevantly nor did he produce any COI which he claims would show the true situations that would assist or advance his case. As such I do not find this ground reasonably arguable for his intended challenge either.

21.  As for the last ground of the Applicant that he has now formed a family in Hong Kong and that he needs to remain in Hong Kong to look after his children, it is wholly irrelevant to the present purpose and is plainly not arguable for his intended application.

22.  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.

23.  In the Applicant’s case, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

24.  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.

25.  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