PHAM THI VAN ANH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1029/2018 and

HCAL 1484/2018 and

HCAL 1485/2018

(Consolidated)

[2019] HKCFI 2182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1029 of 2018

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1484 of 2018

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1485 of 2018

(Consolidated)

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  An extension of time for the application for leave to apply for Judicial Review against the decision of Torture Claims Appeal Board made on 15 June 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicants intend to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, they must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicants must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.  The applicant (in HCAL 1029/2018, Pham Thi Van Anh; “A1”) is a 35-year old national of Vietnam who had repeatedly entered or remained in Hong Kong illegally, with the last occasion on 6 December 2013 when she sneaked in from China, and on 3 March 2014 she surrendered to the Immigration Department and 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, during which she also raised similar claims for her two children (Hoang Chan Thanh and Hoang Phuong Thao; “A2” and “A3” respectively) on the same basis, and which were then assessed jointly together with her own claim.

2.  A1 was born and raised in Kiến An District, Hải Phòng City, Vietnam.  In 1991 at the age of 7 she came with her parents and other Vietnamese on a boat to Hong Kong as refugees seeking asylum, and remained for the next six years being detained in various centers pending determination of their claims, but in 1997 their applications were rejected and she and her parents were repatriated to Vietnam where she returned to school. 

3.  In 2002 A1 travelled to Hong Kong as a visitor but overstayed to look for jobs but was subsequently arrested by police and was repatriated to Vietnam in late 2004.

4.  In 2008 she again came to Hong Kong looking for jobs, this time illegally by sneaking in from Mainland China, but was subsequently arrested by police for the offence of illegally remaining in Hong Kong, for which she was convicted and sentenced to prison for 15 months, and upon her discharge from prison she was repatriated to Vietnam in 2010 where she worked in a hair salon.

5.  In 2011 she married her husband in Vietnam and in the following year gave birth to her daughter A3.  To help her husband to start his own business, A1 borrowed several loans from some money-lenders whom she believes to be loan sharks, and for which she would repay by monthly instalments at high interest rates.

6.  However, in 2013 when her husband’s business faltered, A1 started to have difficulty making her loans repayments, and were threatened by her creditors with violence,and was on several occasions being punched and kicked by their debt-collectors that she had to be taken to the hospital for medical treatments.

7.  In late 2013 A1 found herself pregnant with her son A2, and fearing for the safety of her own and her children in Vietnam, she therefore departed in December 2013 for China, and from there she again sneaked into Hong Kong and raised her non-refoulement claim with the Immigration Department.  After she was released on recognizance pending determination of her claim, she gave birth to A2 on 23 June 2014 in Hong Kong.

8.  On 4 August 2014 she arranged for her daughter A3 to also sneak into Hong Kong, and raised similar non-refoulement claims for both A2 and A3, and for which she completed a Non-refoulement Claim Form jointly for all three of them on 2 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 27 April 2016 the Director of Immigration (“the Director”) rejected the applicants’ 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 (“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”).

10.  In his decision the Director took into account all the relevant circumstances of the applicants’ claim and assessed the level of risk of harm from the creditors to the applicants upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that their problems with the creditors were private personal monetary disputes without any official involvement that state or police protection would be available to the applicants 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 93 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with A2 and A3 to other part 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 them.

11.  By a Notice of Further Decision dated 12 April 2017 the Director again rejected the applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their 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”).

12.  By then the applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 10 May 2016, and for which A1 attended an oral hearing on 2 May 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 15 June 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found A1’s claimed ill-treatments from her creditors even on her own case did not attain the minimum level of severity under the applicable risks, that they arose from her personal monetary disputes with her creditors without any official involvement that state protection would be available to the applicants, and that with reasonable internal relocation within Vietnam also available and that it would not be unduly harsh for the applicants to move safely to other parts of Vietnam away from any risks of harm from the creditors that their non-refoulement claim failed on all applicable grounds.

14.  On 6 June 2018 A1 filed her Form 86 under HCAL 1029/2018 for leave to apply for judicial review of both the decisions of the Director and the Board, and later on 27 July 2018 also filed a separate Form 86 for each of A2 and A3 respectively under HCAL 1484/2018 and HCAL 1485/2018 similarly for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in any of their Forms,and in her supporting affirmation for each of the three applications A1 merely repeated her claim that she and her two children will be at risk of harm if refouled to Vietnam.

15.  At the hearing of their applications, upon ascertaining from A1 that she had no objection to the three applications being heard together, I accordingly ordered that they be consolidated and to be heard and dealt with jointly together. 

16.  The applicants were however by then also seriously late with their Form 86, 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 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.

17.  As the last day of the three-month period for the applicants to file their Form 86 fell on 15 September 2017, hence they were late by more than eight months with their applications, 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:  see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

18.  In the applicants’ case, a delay of more than eight months must be considered as very substantial or excessive, for which A1 was unable to provide any explanation for their delay.  In the circumstances I do not accept that the applicants have any good reason for their serious delay.

19.  As for the merit, if any, of their intended application, as noted above no ground for seeking relief was given in any of their Form 86, and in her supporting affirmation A1 merely repeated her claim that if she and her children were returned to Vietnam, their lives would be in danger.  As such and in the absence of any error of law or procedural unfairness being identified by the applicants, I do not find any reasonably arguable basis or merit in their intended challenge.

20.  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 an 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. 

21.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

22.  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 applicants’ claim.

23.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their applications.

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