LE THI THANH TUYEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 123/2019

[2022] HKCFI 723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 123 OF 2019

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;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 13 June 2018 refused; and

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

Observations for the Applicant:

1.   The Applicant is a 34-year-old national of Vietnam who entered Hong Kong illegally on 10 August 2016 and surrendered to the Immigration Department on 11 August 2016 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her husband’s creditor over his outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.   The Applicant was born and raised in Hai Phong, Vietnam. After leaving school she worked as a kitchen worker, married her husband and raised a family with 2 children.

3.  In 2008 she discovered that her husband had been relying on loans from the local loan shark to feed his drugs addictions, and one day in March 2012 while he was out working, the loan shark with his men came to the Applicant’s home looking for him over his outstanding debts, and threatened the Applicant that they would kill her husband and force her to work as a prostitute unless his outstanding debts were settled soon.

4.  However, when her husband later learnt of his creditor’s threats, he left the matrimonial home and disappeared, and fearing for her own safety the Applicant fled to Ho Chi Minh City and then to Mong Cai where she stayed and worked as a domestic helper for 3 years until one day in 2015 when she ran into her husband’s creditor who then grabbed her and forced her to work as a prostitute.

5.  Eventually in June 2016 the Applicant managed to make her escape from the loan shark and went into hiding, and on 8 August 2016 she departed Vietnam for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While being released on recognizance pending the determination of her claim, the Applicant was arrested by police in 2017 on two occasions for theft for which she was convicted for both offences and sentenced to prison for the total terms of 14 months.      

7.  By a Notice of Decision dated 12 December 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 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”).

8.  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 husband’s 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 put pressure on her to repay her husband’s 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 96 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 Hanoi where it would be difficult if not impossible for her husband’s creditor to locate her.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 24 May 2018 before the Board with her lawyer from DLS during which she elected not to give any further evidence but with submissions made on her behalf by her lawyer to the Board. On 13 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted the Applicant’s claim of fear of harm from her husband’s creditor over his debts problem but found it was a private monetary dispute between them without any official involvement that state/police protection would be available to the Applicant 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 by her husband’s creditor that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 14 January 2019 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 her supporting affirmation of the same date she just repeated her claim of fear of harm from her husband’s creditor over his debts as before without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

12.  By then the Applicant was also seriously out of time with her application, as Order 53 Rule 4(1) of the Rules of 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 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.

13.  As the last day of the three-month period for her to file her Form 86 fell on 13 September 2018, the Applicant was therefore 4 months 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 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.

14.  In the Applicant’s case, a delay of 4 months must be considered as very substantial and inordinate, for which she did not provide any explanation in her Form or supporting affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good reason for her serious delay.

15.  As for the merits, if any, of the intended application, as noted above the Applicant has failed to put forth any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

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 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.     

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 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