NONG THI THANH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1197/2022

[2023] HKCFI 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1197 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 (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 10 October 2019 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 57-year-old national of Vietnam who entered Hong Kong illegally on 2 September 2014 and surrendered to the Immigration Department some 6 months later on 9 April 2015 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 creditors for failing to repay his debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Quang Ninh Province, Vietnam. After leaving school she married her husband and raised a family with 2 children.

3.  In 1991 she with her family came to Hong Kong as refugees but voluntarily returned to her home district in Vietnam in 1997 when she started to work as a vegetable hawker, while her husband frequently travelled to various parts of the country for his business.

4.  One day in 2013 while her husband was as usual away from home, 2 unknown men came to the Applicant’s home demanding her to repay her husband’s debts, and when she refused claiming not to know anything about such debts, those men warned her to take their demand seriously or else she could be killed.

5.  Upon his subsequent return home, the Applicant told her husband of what happened, of which he admitted of owing his loan sharks large sum of debts but insisted that he would handle the matter himself.

6.  Thereafter those men returned several times in the absence of her husband and again demanded the Applicant to repay her husband’s debts or else they would kill her.

7.  Given the persistent threats from those men and the frequent absence of her husband, the Applicant felt it was not safe to remain in Vietnam, and so on 5 February 2014 she departed 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 21 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 21 March 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”).

9.  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 creditors upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there was 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 her problem with her husband’s creditors 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 95 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 the country away from her home district such as Ho Chi Minh City where it would be difficult if not impossible for her husband’s creditors to locate her.

10.  On 29 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled oral hearing on 24 June 2019 without explanation, and which the Board proceeded to deal with in her absence and on paper. On 10 October 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found no reliable evidence of any real or serious threats or ill-treatment being inflicted on the Applicant by her husband’s creditors over his debts, and that in any event it was a private monetary dispute between them without any official involvement that state or police protection will be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.   

12.  On 3 November 2022 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 or in her supporting affirmation of the same date, nor did she request any oral hearing for her application.

13.  By then the Applicant was also seriously out of time with her 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 for extending the period within which the application shall be made.

14.  As the last day of the three-month period for her to file her Form 86 fell on 10 January 2020, the Applicant was therefore some 2 years and 10 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.

15.  In the Applicant’s case, a delay of 2 years and 10 months must be considered as extremely substantial and inordinate, for which she did not provide any explanation in her Form or 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 the Applicant’s such serious delay.

16.  As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her 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.

17.  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.

18.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision 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.

19.  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.

20.  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