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HCAL 1610/2018
[2021] HKCFI 3424
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1610 of 2018
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Nguyen Thi Le |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant was arrested by the police on 16/3/2015 after she had sneaked into Hong Kong. She filed the non-refoulement claim in this case on 23/3/2015.
2. Meanwhile, she gave birth to a daughter [1] on 18/10/2016. Her daughter applied for non-refoulement claim on 12/10/2018. The applicant represented her daughter in the non-refoulement claim.
3. The Director dismissed the applicant’s claim on 12/5/2017. Her appeal to the TCAB was dismissed on 1/12/2017. She filed an application for leave for judicial review on 13/8/2018. She was about 5½ months out of time.
4. On 14/9/2018, the applicant sought to amend the Form 86 by adding her daughter as an applicant.
5. On 19/2/2019, the Director dismissed her daughter’s claim.
6. On 14/5/2019, this court explained to the applicant in writing that she could not add her daughter to the existing Form 86 (HCAL 1610/2018). She should wait for the TCAB decision of her daughter. She should then file another leave application for her daughter if the situation warranted. The two leave applications would be heard together.
7. On 25/10/2019, the TCAB rejected the appeal of her daughter.
8. Since the TCAB decision, the applicant did not file any leave application for her daughter as directed by this court. On 8/10/2020, this court wrote to the applicant stating that she should file a fresh Form 86 on behalf of her daughter. There was no response from her. There was no return of mail.
9. After confirming the address with the Immigration Department, this court re-sent the letter to the applicant on 10/11/2020. This court called her. Her friend Ms. Kan answered the phone. Ms. Kan agreed to inform the applicant to file a fresh Form 86 for her daughter.
10. On 16/12/2020, the applicant came to take the letters from this court.
11. On 28/1/2021, this court called the applicant again. Ms. Kan answered the phone and informed this court that the applicant was notified but she did not take any action.
12. This court listed the case for hearing. On 27/7/2021, a notice of hearing was sent to the updated address of the applicant. This court also informed Ms. Kan of the hearing date.
13. On the hearing date (30/8/2021), the applicant did not attend. This court decided to deal with the application on paper.
14. The basis of the applicant’s claim was that she would be harmed or killed by the creditor (“Hoan”) if she returned to Vietnam. She was unable to repay the debt.
Background
15. The applicant was born on 19/2/1986 in Hai Phong, Vietnam [2]. She had education for 12 years. She was divorced. Her ex-husband and children [3] were in Vietnam. Her mother and siblings were in Vietnam. In Hong Kong, she cohabited with another Vietnamese claimant. She gave birth to her daughter in 2016.
16. Around 2006, she started a sea product business with her ex-husband. Later, she borrowed from Hoan to invest in the business. She could not recall the year. She heard that Hoan was a triad.
17. The loan was 500 million VND [4] with monthly interest of 50 million VND. There was no deadline for repayment of the principle sum. There was a written loan agreement.
18. After around 2 years, she could not repay the monthly interest because the business turned bad. One evening, Hoan and his men came to her home. They told her to repay the monthly interest and the principle in 3 months or else they would kill her. She could not repay after the deadline. Hoan and his men came again. She begged Hoan who allowed her 2 hours to repay. She then fled to Mong Cai [5] and stayed there safely for a month.
19. She had not filed a formal report but just informed a police officer at the police station about the threat. The officer indicated that it was a private matter which they could not resolve. She did not know what had happened to her family after she fled.
20. She arranged a visa to leave Vietnam through an agent. On 30/11/2014, she left Mong Cai to Dong Xing in China. She stayed at Dong Xing for 3 months before sneaking into Hong Kong on 8/3/2015. She was arrested by the police on 16/3/2015.
21. She thought Hoan would be able to locate her anywhere in Vietnam. She did not think the police in Vietnam would protect her.
22. She contacted her ex-husband and family in Vietnam. They told her Hoan came to ask about her and threatened to kill her. However, her family was safe.
The decision of the Director of Immigration
23. The Director concluded that there was no substantial ground to believe that the risk of harm from Hoan was real and foreseeable. He pointed out the following reasons: [6]
(a) Hoan and his men had pressed the applicant for repayment on 2 occasions. They only threatened her. There was no actual violence. The applicant was never harmed. There was no injury attaining ‘a minimum level of severity.’
(b) Hoan and his men had not harmed the applicant. They had not harmed her family. Hoan even agreed more time for her to repay. This was strong indication that they had no intention to harm or kill her. They just wanted to put pressure on her for repayment.
(c) It was a private loan dispute. There was no evidence that any public official was involved. There was no evidence that Hoan would use his resources to locate her anywhere in Vietnam.
(d) There was no evidence that the police or government authorities would not assist the applicant had they learned about the conduct of Hoan.
(e) The Director pointed out that the Vietnam government did not implement the law effectively. There were corruption and abuse of power. Public officials and the police had violated the law with impunity. However, there was improvement in petition and complaint channels against corruption and inefficient government administration. The Central Committee for Internal Affairs was tasked to make policy recommendation against corruption. The new Anti-Corruption law required senior officials to declare their income and assets. There were reports that public officials were punished for corruption. The Director found that there was reasonable State protection.
(f) Internal relocation was permissible under the law in Vietnam which was a large country with a population of nearly 94 million. It was not unduly harsh for the applicant to relocate to Ho Chi Minh City. The fact that she was safe in Mong Cai showed that Hoan was unable to locate her in other parts of Vietnam
24. The Director concluded that the applicant’s claim failed on all grounds.[7]
The decision of TCAB
25. An oral hearing was held on 2/11/2017. The applicant confirmed the truth and correctness of the evidence in the NCF and the record of interview.
26. The Adjudicator pointed out various aspects of the applicant’s evidence which showed that she was not truthful. The following is the reasons for rejecting her evidence:
(a) The applicant was uncertain about dates and the sequence of relevant events. She could not remember when she had divorced; when her business turned bad and when she borrowed from Hoan.
(b) According to her NCF, she was able to repay the monthly interest until about June 2014. However, she told the adjudicator that she applied for the passport in September 2013 when Hoan asked her to repay the principal sum.
(c) The applicant told the adjudicator that her aquaculture farm business with her ex-husband was unsuccessful. She then borrowed from Hoan to start the seafood farming business on her own. It was inconsistent with her NCF in which she said there was only one sea product business with her ex-husband. There was no separate business on her own.
(d) The applicant told the adjudicator that her business was initially profitable earning 15 million VND a month. This was not mentioned in her NCF.
(e) The applicant told the adjudicator that the profit of her business declined slowly. In her NCF, she asserted that she and her ex-husband tried to expand the business to include aquaculture and the sudden death of their stock of geoduck clams which caused the loss.
(f) The applicant told the adjudicator that she paid a monthly interest of 50 million VND [8]. Her monthly profit was about 20 million. She was unable to pay the monthly interest of 50 million as asserted in her NCF even if her profit reached 40 million. It was implausible that she could pay the monthly interest for the initial 2 years. It was even more implausible when living expenses were taken into consideration. The applicant was unable to explain the inconsistency.
(g) The applicant told the adjudicator that she could not repay the interest after 2 years because of competition and increase in the expenses on her children. In her NCF, she asserted that it was due to decrease in customers and economic recession.
(h) The applicant told the adjudicator that she could not recall how many times Hoan had threatened her. There were threats by phone. In her NCF, she only mentioned 2 occasions of threat by Hoan. There was no mention of threats by phone.
(i) During the occasion just before she fled to Mong Cai, Hoan extended the deadline of repayment for 2 hours. It seemed unlikely that Hoan would leave her unattended so that she could escape.
27. Given the above, the adjudicator found that the loan and the threats by Hoan for repayment were wholly unreliable. Her assertion that she had a business farming geoduck clams and other seafood was not credible. The adjudicator rejected the applicant’s version of facts in support of her non-refoulement claim.
28. The adjudicator found that there was no real risk of harm. He rejected the claims of the applicant on all applicable grounds on 1/12/2017.
Judicial Review
29. The applicant applied for leave for judicial review on 13/8/2018. She was nearly 5½ months out of time. In her affirmation in support of the leave application, she repeated that she could not repay the loan. Her creditor would harm her. She did not know Chinese and English, that was why she was late for the leave application.
30. The adjudicator had set out the legal principles. He had considered the evidence in detail. The inconsistencies set out above were material. The adjudicator was justified in rejecting the factual basis of her claim. I agree with the decision of the adjudicator. There is no error of law or procedure.
31. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success.
32. The applicant was out of time in filing the leave application by nearly 5½ months. She explained that she did not know Chinese and English. In considering whether there is good reason for the delay, I have to consider the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted. [9]
33. I do not accept her explanation for the delay in the leave application. She was able to process her claim before the Director and the TCAB. Her Form 86 and affirmation were written in English. She should be able to find language assistance.
34. The delay is substantial. Her explanation is not accepted. As analysed above, the intended judicial review is of no merit.
35. In the circumstances, there is no good reason for extending the time for the leave application. I also refuse leave for the intended judicial review.
The position of her daughter
36. The applicant had applied to add her daughter to the present leave application on 14/9/2018. At that time, her daughter had not been assessed by the Director. However, after her daughter’s claim was dismissed by the Director and the TCAB, the applicant did not file a fresh leave application for her daughter as directed by this court.
37. The applicant did not respond to the letters from this court. She did not turn up for the oral hearing. Given that the intended leave application of her daughter is substantially out of time, it is inappropriate for this court to deal with it by amending the Form 86 in this application.[10]
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
Dated the 18th day of November 2021
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(Mike Mak)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant / the Applicant’s solicitors
on 18 November 2021
Nguyen Thi Le
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on
18 November 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7164/17/5/170/V1339
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 11110/15
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1]Doan Thi Hoai Anh
[2] Cat Ba, Cat Hai.
[3] A son and a daughter born in 2004 and 2009.
[4] Vietnamese Dong.
[5] It took a bus trip of 7 hours from Cat Ba.
[6] Decision of the Director dated 12/5/2017, §§12—16.
[7] Decision of the Director dated 12/5/2017, §§17—32.
[8] 10 million per 100 million of loan.
[9] H v Director of Immigration [2020] HKCFA 22, para. 37; AW v Director of Immigration CACV 63/2015, §§26—27.
[10] The Rules of the High Court, O 15, r.6(5).
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