DO VAN TAN v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Vietnam who entered Hong Kong illegally in late November 2019 and was arrested by police on 5 March 2020 for various offences including possession of dangerous drugs and theft, and while being detained pending trial 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 Thanh Ha District, Hai Durang Province, Vietnam. After leaving school he worked as a machine operator to make his living, got married and raised a family with 2 children in his home district.

3.  In February 2018 he started his own pigs farming/trading business with the help of a loan borrowed from a local money-lender to be repaid within 6 months with interests.

4.  However, his business did not fare well, and by August 2018 when he was unable to repay his loan, his creditor started to send men to threaten him, and on the last occasion those men beat him violently that he suffered cuts and bruises all over his body and with a bleeding left arm, and before they left the Applicant was warned by those men that next time he would be killed if he still failed to repay his loan. 

5.  As a result the Applicant became fearful for his life and went into hiding in other towns, and in November 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 19 June 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 15 July 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 his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only 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 27 July 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but shortly thereafter on 10 August 2020 the Applicant in writing requested to withdraw his appeal, and upon being satisfied that his request for withdrawal was freely sought, that he fully understood the consequences of the withdrawal of his appeal, and that he had good reason to do so in that he considered it safe for him to return to Vietnam, the Board by a letter dated 29 September 2020 directed that his appeal be withdrawn and dismissed, and that it also confirmed the Director’s decision as having finally determined and disposed of the Applicant’s non-refoulement claim.     

9.  However, some 8 months later on 8 June 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without explaining why, or for that matter why he now wants to challenge a decision which acceded to his own request to withdraw his appeal, nor did he request any oral hearing for his application.

10.  By then the Applicant was also 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.

11.  As the last day of the three-month period for him to file his Form 86 fell on 29 December 2020, the Applicant was therefore more than 5 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.

12.  In the Applicant’s case, a delay of more than 5 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 29 September 2020 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

13.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, or for that matter why he now wants to challenge a decision which acceded to his own request to withdraw his appeal. As such, 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 merits in his intended application either.

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 Board withdrew and dismissed his appeal at his own request upon being satisfied that it was freely sought, that he fully understood the consequences of the withdrawal of the appeal, and that he had good reason to do so as he considered it safe for him to return to his home country, and as held by the Court of Appeal in Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669 that 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, and as stipulated in Section 37V(2)(b) of the Immigration Ordinance that a non-refoulement claim rejected by the Director is finally determined when the appeal against it was disposed of notwithstanding the lack of determination on the merits, as the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal, and hence in the present case of the Applicant, the Director’s decision has finally determined and disposed of his non-refoulement claim.

16.  Henceforth, the fact that it has been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim even 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.

17.  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 the Director’s consideration and assessment of the Applicant’s claim or the Board’s decision on his request to withdraw his appeal.

18.  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 such 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