NGUYEN VAN QUYEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1491/2022

[2024] HKCFI 1716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1491 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 8 March 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 44-year-old national of Vietnam who entered Hong Kong illegally on 29 October 2019 and was arrested by police on 5 November 2019 for theft for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim for protection to the Immigration department on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts.

2.  The Applicant was born and raised in Thi Xa Dong Trieu City, Tinh Quang Ninh Province, Vietnam. After leaving school he worked as a coal mining worker, got married and raised a family with 2 children in his home district.

3.  In 2017 the Applicant and his wife started operating their own coal mining business with the help of a loan borrowed by the Applicant from a local money-lender to be repaid within 6 months and with monthly interest payments, which the Applicant initially managed to make from the business income.

4.  However, some 6 months alter they had to close down their business due to government regulations, and when the Applicant was unable to repay his loan, his creditor started to send men to threaten him, and on several occasions he was beaten by those men with iron rods that he suffered injuries all over his body and required medical treatments in the local hospital.

5.  After being threatened by his creditor on the last occasion that if he still failed to repay his loan that he would be killed, the Applicant became fearful for his life and fled to Hanoi to hide in his uncle’s place before moving on to Mong Cai where he worked as a labourer, and on 28 October 2019 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 12 May 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 18 August 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 followers 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 them to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private dispute between him and his creditor 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 330,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country 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.

8.  On 31 August 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 13 January 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 March 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his creditor that caused him to leave his home country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event even if such risk were real that it arose from a private monetary dispute between the 2 of them only them without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam if resorted to as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 14 December 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

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

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

(3)  That the Adjudicator 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 his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his 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;

(5)  That the Board 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 the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response; and

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

11.  By then the Applicant was however 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 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.

12.  As the last day of the three-month period for him to file his form 86 fell on 8 June 2022, the Applicant was therefore more than 6 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.

13.  In the Applicant’s case, a delay of more than 6 months must be considered as substantial and inordinate, for which he explained at the hearing of his application that he was without legal representation and therefore did not know how to make his application until later when he managed to obtain assistance from his friends, but by then he was already out of time with his application.

14.  The record shows that the decision was sent on the same day of 8 March 2022 to the Applicant’s then reported address without being returned through undelivered post, and while it is accepted that without legal representation the Applicant would require assistance with his application, and which he subsequently did, but this cannot be accepted as a valid justification for his such serious delay.

15.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or political corruption to the Applicant’s case when on the factual basis of even his own case that it was a private monetary dispute between him and his 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 his intended challenge.

16.  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.

17.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real 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 all 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