VI THI PHUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1198/2023

[2024] HKCFI 847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1198 OF 2023

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of Vietnam who entered Hong Kong illegally on 14 August 2021 and was arrested by police on 15 October 2021 for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her outstanding debts.

2.  The Applicant was born and raised in Hoi Xuan, Quan Hoa, Thanh Hoa, Vietnam. After leaving school she worked in a shoe factory, formed a relationship with a boyfriend and raised a family with their son in her home district.

3.  In February 2019, in order to assist her boyfriend to start his own floral business the Applicant borrowed a loan from a local money-lender with monthly interest payments until discharge of the loan.

4.  For the next 7 months she managed to make her monthly interest payments from the income of her boyfriend’s floral business, but in September 2019 her boyfriend’s business collapsed and was closed, and when she was unable to repay her loan, her creditor started to send men to threaten her, and after being severely beaten by them on several occasions, the Applicant went into hiding in a friend’s place in Da Nang.

5.  However, when she later heard that her creditor‘s men were looking for her everywhere, she felt it was no longer safe to remain in Vietnam, and so on 13 August 2021 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 April 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 23 May 2022 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”).

7.  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 followers 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 of them to seriously harm or kill her other than to press her to repay her debts, 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 100 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country 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.

8.  On 30 May 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be heard by the Board, the Applicant on 12 February 2023 filed a notice of withdrawal of her appeal/petition with the Board, and by a letter dated 13 February 2023 the Board confirmed upon her withdrawal of her appeal/petition that no further action will be taken by the Board in respect thereof, and that the Director’s decision shall remain good and valid that her non-refoulement claim is finally determined.

9.  However, some 5 months later on 14 July 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Director reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from killings that she may face if deported back to her home country;

(2)  That the Director failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim;

(3)  That the Director acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing her claim;

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

(5)  That the Director failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in her country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions that the decision of the Director should be considered unreasonable in the scope of Public Law; and

(6)  That the Director’s decision to refuse the Applicant’s claim was wrong and irrational.

10.  By then the Applicant was however 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  Leaving aside the question of whether the Applicant could still challenge the Director’s decision after the Board had disposed of her appeal upon her request to withdraw it, and without instead of requesting the Board to re-open or re-instate her appeal on the basis that her earlier withdrawal might for some reasons be invalid if it were indeed the case, the Applicant would have been some 2 months late with her application after the 3-months period from the Board’s decision had expired on 13 May 2023, 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 2 months must be considered as substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, I am unable to see any good or valid reason for her such serious delay, or for that matter why her apparent change of mind about challenging the Director’s decision.

13.  As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just some broad and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Director had erred in his decision, or in what way was the decision unfair or unreasonable or that the Director had acted procedurally unfair or irrational, or how did the immigration officer fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to her case when even on the factual basis of her own case that her claimed risk of harm arose from some private monetary dispute between her and her creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge of the Director’s decision.

14.  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.

15.  In the Applicant’s case, the fact is that it has been correctly established by the Director in his decision that the risk of harm in her claim if real 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.

16.  Having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the Applicant’s process before the Director or in his decision, or any failure on the part of the Director to apply high standards of fairness in his consideration and assessment of the Applicant’s claim.

17.  Moreover, the Applicant recently on 6 February 2024 filed an affirmation requesting to withdraw her application as it is now safe for her to return to Vietnam.

18.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is safe for her to return to her home country, I 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