NGUYEN THI NGUYEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 418/2019

[2022] HKCFI 1235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 418 of 2019

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 29 December 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Vietnam who entered Hong Kong illegally in December 2012 and was arrested by police on 7 March 2013 for illegally remaining in Hong Kong and for possession of a forged identity card for which she was subsequently convicted and sentenced to prison for 15 months. After her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditors over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Mong Cai, Vietnam. After leaving school she assisted in her family’s tofu business, married her husband and raised a family with 2 children in her home district.

3.  In 2007 she started a coal mining business by borrowing various loans from creditors in her home village with monthly interests payments, but when she closed her business in 2010 and was unable to repay her loans, her creditors would come to her home with men making threats against her and her family, and after her husband had divorced her and ran away, and as she was all by herself facing those threats, she fled to Mong Cai to hide in her mother’s place, and in December 2012 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and after she was arrested by police and upon her subsequent discharge from prison, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 25 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

4.  By a Notice of Decision dated 14 November 2016 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her 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 reliable evidence of any real intention of her creditors to seriously harm or kill the Applicant other than to put pressure on her to repay her debts, that in any event these 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”) show that reasonable internal relocation alternatives are available in Vietnam with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move 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 her.

6.  On 22 November 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 14 November 2017 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 December 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found serious inconsistencies, discrepancies and implausibility in the Applicant’s evidence given in her appeal hearing before the Board significantly different from those previously submitted to the Director that it doubted the credibility of her claim, that her credibility had further been undermined by her being charged for possessing forged identity card, and concluded that she had fabricated her claim to have borrowed loans from her creditors and being threatened by them for coming to Hong Kong that it was not satisfied that she would face any risk of being harmed by anyone upon her return to Vietnam that her claim for non-refoulement protection failed on all the applicable grounds.      

8.  On 14 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) That the Adjudicator wrongly underestimated the risk of the Applicant being harmed or killed by her creditors if refouled to her home country without having ever lived in Vietnam to experience the real situation there;

(2) That the Board failed to take account of corruptions in the Vietnamese police in assessing that the Applicant would receive protection from the police from being harmed or killed by her creditors; and

(3) That the Board unfairly relied on the fact that the Applicant had been charged for possessing a forged identity card as against her in assessing her credibility.  

9.  By then the Applicant was however seriously out of time with her application, as Order 53 Rule 4(1) of the Rules of 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 consider that there is good reason for extending the period within which the application shall be made.

10.  As the last day of the three-month period for her to file her Form 86 fell on 29 March 2018, the Applicant was therefore more than 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. 

11.  In the Applicant’s case, a delay of more than 10 months must be considered as extremely substantial and inordinate, for which the Applicant explained in her affirmation that when she received the decision, she just had a miscarriage of her pregnancy that she was then still physically affected, and as she could not read English and therefore did not know what to do, and that thereafter she became pregnant again and hence had no time to deal with the matter until she was way out of time to challenge the decision.

12.  The Applicant did not provide any medical evidence to corroborate her claim, but even accepting that she indeed at that time had had the misfortune of a miscarriage, her other reasons of not being able to read English and her subsequent pregnancy cannot in my view justify such serious delay of more than 10 months. In the circumstances I am not satisfied that the Applicant has provided any good reason for her delay.   

13.  More importantly, nor has she shown any merits in her intended application, as I do not find any of her grounds stated above reasonably arguable for her intended challenge of the Board’s decision for the following reasons.

14.  The Board rejected the Applicant’s case essentially on its adverse finding against her credibility that she had fabricated her claims of having borrowed money from her creditors for her coal business and of her alleged fear of harm from them over her outstanding loans that it was not satisfied that she will be sought or threatened or harmed by anyone upon her return to Vietnam for the thorough and detailed analysis and reasoning set out in 45 – 58 of its decision with the benefit of hearing her in her oral evidence and answers raised of her claim, hence the Board did not find it necessary to proceed to consider the availability of state or police protection to the Applicant or of any risk that she may face upon her return to Vietnam which the Board as noted above found none to exist, or for that matter of any implication of any police corruptions which might have existed in Vietnam, and as such her complaints under Grounds (1) and (2) are not in my view relevant or reasonably arguable for her intended challenge.

15.  As for her complaint under Ground (3) that the Board relied on her being charged for using a forged identity card in assessing her credibility, the Board was in fact entitled to do so under Section 37ZD of the Immigration Ordinance which provides as follows:

“(1) In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behavior of the claimant –

(a) any behavior that the immigration officer or the Appeal Board considers is designed to, or is likely to be designed to –

(i) conceal information;

(ii) mislead; or

(iii) obstruct or delay the handling or determination of the claimant’s torture claim;

(b) a failure to take advantage of a reasonable opportunity to claim non-refoulement protection in respect of a torture risk State while in a place outside Hong Kong to which the Convention applies (other than a torture risk State);

(c) if the claimant is a person who is subject or liable to removal, a failure to make the claim when, or as soon as practicable after –

(i) the claimant has become subject or liable to removal; or

(ii) the events on which the claim is based have taken place,

whichever is later;

(d) if the claimant is a person whose surrender is requested in surrender proceedings, a failure to make the claim when, or as soon as practicable after –

(i) it comes to the claimant’s notice that the surrender proceedings have been commenced; or

(ii) the events on which the claim is based have taken place,

whichever is later; and

(e) a failure to make the claim before being arrested or detained under a provision of this Ordinance, unless –

(i) the claimant had no reasonable opportunity to make the claim before the arrest or detention; or

(ii) the claim relies wholly on matters arising after the arrest or detention.

(2) Without limiting subsection (1)(a), behavior described in any of the following paragraphs is behavior within the meaning of that subsection -

(a) the production of a false document as proof of the claimant’s identity;

(b) …

…”

16.  As noted above, the Applicant sneaked into Hong Kong sometime in December 2012 but did not raise any non-refoulement claim even after she was arrested by police on 7 March 2013 for illegally remaining in Hong Kong and for possession of a forged identity card, for which she was subsequently convicted and sentenced to prison for 15 months, and it was only after her discharge from prison on 4 January 2014 and was referred to the Immigration Department for deportation when she eventually on 19 January 2014 raised her non-refoulement claim, which was more than one year after she arrived in Hong Kong. Henceforth not only was the Board entitled to rely on the above stated subsection (2)(a) to take account of her possession of the forged identity card as damaging her credibility, but could have also taken account of her failure to raise her claim before her arrest under subsection (1)(e) as also damaging her credibility.

17.  In any event, as noted above, it was for all those reasons set out in paragraphs 45 – 58 of its decision that the Board found the credibility of the Applicant’s claim doubtful and suspicious, and which had further been undermined and damaged by her such conduct that the Board rejected her claim and dismissed her appeal, and of which I do not find any error of law or irrationality or procedural unfairness upon close scrutiny of its decision. In the circumstances I do not find this complaint of the Applicant reasonably arguable either. 

18.  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.

19.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part 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.

20.  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.

21.  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