PHAN THE CUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 684/2021

[2021] HKCFI 2364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 684 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 (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 2021 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of Vietnam who entered Hong Kong illegally on 28 April 2020 and was arrested by police on 19 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 for failing to repay his loan. 

2.  The Applicant was born and raised in Xa Nam Thanh, Huyen Yen Thanh, Tinh Nghe An, Vietnam. After leaving school he worked as a delivery worker and a driver in his home district.

3.  In January 2019 he started his own garment business with the help of a loan borrowed from a local money-lender to be repaid by March 2020 but meanwhile with monthly interest payments.

4.  However, one night on 20 March 2020 his shop was burnt down after a fire accident, and as a result he lost his business, and when he was unable to repay his loan, his creditor sent his men to beat him up with threats that he would be killed if he still failed to repay his loan.

5.  Fearing for his life, the Applicant fled from his home to hide in a friend’s place, and on 20 April 2020 he departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 August 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 17 September 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”).

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 his creditor and his men upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, 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 98 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 to large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

8.  On 5 October 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and in his notice of appeal he repeated his claim of fear of harm from his creditor for his failure to repay his loan, but before his appeal was heard by the Board, the Applicant on 19 December 2020 wrote to the Board (received on 28 December 2020) requesting to withdraw his appeal because his problem in his home country had been resolved and that he wanted to return to Vietnam to be with his family, and on 28 December 2020 he wrote again to the Board (received on 29 December 2020) to add that his father in Vietnam had become sick and hence he wanted to withdraw his appeal.

9.  By a letter dated 5 January 2021 the Board informed the Applicant that his request to withdraw his appeal was accepted as it was satisfied that he had provided good reason for his proposed withdrawal and that he understood the consequences of the withdrawal, that the Director’s decision was confirmed and that no further action was to be taken by the Board in respect of the appeal. 

10.  However, 4 months later on 13 May 2021 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decision as he cannot return to home country where his life will still be in danger without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.  By then the Applicant was also 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.

12.  As the last day of the three-month period for him to file his Form 86 fell on 5 April 2021, the Applicant was therefore more than 5 weeks 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 HKCA 393.

13.  In the Applicant’s case, a delay of more than 5 weeks must be regarded as substantial, for which he did not provide any explanation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his substantial delay.

14.  As for the merits, if any, of his intended application, as noted above the Applicant has not put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality 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 for or 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 had acceded to his clear request to withdraw his appeal on the basis of his stated reasons, and had also confirmed the Director’s decision which has therefore finally determined the Applicant’s non-refouement claim once his appeal had been properly disposed of by the Board, and in his present leave application the Applicant has failed to identify in what way that the decision constituted any error of law, irrationality or procedural unfairness on the part of the Board.

17.  Nor had the Applicant applied to the Board to seek to re-instate his appeal, which the Board would in any event only do so upon being satisfied that the appeal had been invalidly withdrawn and was thus a nullity, as held by Ap v Secretary of State for the Home Department the United Kingdom’s Asylum and Immigration Tribunal in [2008] INLR, as otherwise the Board would have been functus officio to deal with the appeal after accepting the withdrawal of the same, a decision followed by the Court of First Instance in HT v Betty Kwan [2017] 2 HKLRD 567 and approved by the Court of Appeal in Re Ali Usman [2018] HKCA 955.

18.  In Re Das Purnima Rani [2019] HKCA 669, Lisa Wong J in giving the judgment of the Court of Appeal elaborated on these principles as follows:

“41. 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. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeal.

… ’

43.  On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the claimant’s application. Quite apart from the nullifying effect of an invalid withdrawal/abandonment, this conclusion also appears to us to follow from applying the high standard of fairness required in handling non-refoulement claims”  

19.  In applying these principles, I do not read the Applicant’s Form 86 or his supporting affirmation in anywhere contesting the validity of his earlier withdrawal of his appeal to the Board against the Director’s decision. More importantly, it seems quite clear to me from his two earlier letters to the Board, the Applicant did make a deliberate and informed decision in December 2020 to withdraw his appeal, and that his subsequent change of mind by his present application in the absence of any good reason cannot in my view invalidate his earlier withdrawal of his appeal before the Board.

20.  In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration of the Applicant’s request to withdraw his appeal.

21.  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 serious 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