HOANG THI THANH THU v. TORTURE CLAIMS APPEAL BOARD

HCAL 1091/2018

[2021] HKCFI 1173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1091 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 15 February 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of Vietnam who entered Hong Kong illegally on 28 May 2014 and was arrested by police on 13 August 2014 for illegally remaining in Hong Kong and for using a forged Hong Kong identity card for which she was subsequently convicted and sentenced to prison for 15 months. Upon her release from prison and after she was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditors for failing to repay her loans. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Le Chan District, Haiphong City, Vietnam. After leaving school she worked as a tailor, got married and raised a family of 2 sons in her home district.

3.  In 2010 she decided to set up a furniture shop by borrowing from 2 local money-lenders with monthly interest payments payable to them until repayment of the loans.

4.  Initially she was able to make her monthly interest payments to her creditors from the income of her furniture business, but by the end of 2011 her business did not fare well and she started to have difficulties making her loans repayments, which led her creditors to send their men to make threats against her, and after several occasions when she was beaten by those men, and when the police were not helping, she therefore took shelter in her brother’s home in June 2012, and later she fled to Mong Cai City and then to Hanoi, and eventually on 26 May 2014 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her subsequent arrest and conviction for using a forged identity card, and upon her release from prison, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 31 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 10 December 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 creditors upon her 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 on their part to seriously harm or kill her other than to put pressure on her to repay her loans, 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 (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 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 creditors to locate her.

7.  By a Notice of Further Decision dated 27 October 2016 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 24 December 2015, but for which she failed to attend the oral hearing scheduled on 23 January 2017 before the Board which in the absence of a satisfactory explanation from her proceeded to deal with her appeal in her absence and on paper. On 15 February 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found no good reason from the Applicant for failing to attend her oral hearing so as to explain and clarify the many inconsistencies and discrepancies found in her account of events in Vietnam relevant to her claim prior to her departure, and that in any event with state/police protection available to her upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.     

10.  On 13 June 2018 the Applicant filed her Form 86 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 his supporting affirmation of the same date she merely repeated her claim that her life would be in danger if refouled to Vietnam but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.  By then the Applicant was also seriously out of time with her 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.

12.  As the last day of the three-month period for her to file her Form 86 fell on 15 May 2017, the Applicant was therefore more than 1 year 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 reasons 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 1 year must be considered as very substantial and excessive, for which she did not provide any explanation in her application or her supporting affirmation, and as the record shows that the decision was sent on the same day to her last reported address which is the same as stated in her present application, and which has never been returned through undelivered post, I do not see in the circumstances any good reason for her serious delay.

14.  As for the merits, if any, of her intended application, as already noted above the Applicant has failed to put forward any proper or reasonably arguable ground for her intended challenge either, and in the absence of any error of law or procedural unfairness in her 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.

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 decision that the risk of harm in her 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.     

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 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