PHUNG THI SEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1314/2018

[2021] HKCFI 1706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1314 of 2018

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.  leave to amend the Notice of application for leave to apply for Judicial Review refused;

2.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 17 November 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of Vietnam who entered Hong Kong illegally on 21 October 2014 and was arrested by the police on the same day. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditors for failing to repay her loans. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Tien Lang County, Haiphong City, Vietnam. After leaving school she worked as a dressmaker, married her husband and raised a family of 2 children in her home district.

3.  In 2008 she and her husband decided to start a tailor shop by borrowing a loan from a local money-lender with interest payments payable on monthly basis until repayment of the loan.

4.  However, in late 2012 their business started to deteriorate and they had difficulties making the loan monthly interest payments, and so in 2013 they borrowed another loan from a second money-lender to meet their various business expenses as well as the monthly interest payments of their first loan, but by mid-2014 they were unable to carry on with their business which was then closed down in July 2014.

5.  As a result they defaulted with both of their loans repayments, and when their creditors started to send men to threaten them, and after her husband had gone into hiding and disappeared, the Applicant decided it was not safe to remain in Vietnam, and so in October 2014 she departed for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 May 2016 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 17 June 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by her creditors upon her return to Vietnam due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on their part to seriously harm the Applicant other than to put pressure on her to repay her loans, that her problems with her creditors were private monetary disputes 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”) shows that reasonable internal relocation alternatives are available in Vietnam with a large population 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 parts of Vietnam away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditors to locate her.

8.  By a Notice of Further Decision dated 18 August 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 27 June 2016, and for which she attended an oral hearing on 1 September 2017 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 17 November 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found a number of important aspects of the Applicant’s claim and evidence confused, contradictory and difficult to understand that caused the Board to have grave concerns about the credibility and plausibility of her claim, that in any event there is no evidence of any physical threats or ill-treatments inflicted by her creditors on her or her family prior to her departure from Vietnam that it was not satisfied that there are substantial grounds for believing that there would be any real risk of ham from her creditors upon her return to Vietnam, and that in the absence of any official involvement that state/police protection would be available to the Applicant that her claim for non-refoulement protection failed on all applicable grounds.   

11.  On 9 July 2018 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 merely repeated her claim that she would be killed by her creditors if returned to Vietnam but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

12.  The Applicant was by then also out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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 17 February 2018, the Applicant was therefore late by 4 months 3 weeks 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 3 weeks must be considered as very substantial and excessive, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good or valid reason for her serious delay.

15.  As for the merits of her intended application, as noted above the Applicant has 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 reasonably arguable basis for or merits in her intended application. 

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 the Director in his 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 parts of Vietnam, a decision also confirmed by the Board, 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.

20.  I should also note that on 11 March 2021 the Applicant filed an affirmation to request to include a son of hers in her leave application as the 2^nd Applicant, but no further details have been provided by her regarding this son other than a copy of his recognizance issued by the Immigration Department dated 18 August 2017 with a photo of an infant.

21.  According to the Applicant’s NCF and the Director’s decision, the Applicant has 2 children from her marriage in Vietnam, a daughter and a son, with the latter born in 2004 and hence now aged 16 and is believed to be still in Vietnam, hence this infant whom the Applicant now wishes to include in her application must be another son born after the Applicant’s arrival in Hong Kong and sometime in 2017 based on his recognizance. Given the fact that he was never involved in the Applicant’s claim before the Director or the Board during her screening process or in their decisions, there is simply no legal basis for this child of the Applicant to be included in her present leave application, and I therefore also refuse her request.

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