NGUYEN PHIEN HIEU v. TORTURE CLAIMS APPEAL BOARD

HCAL 393/2021

[2021] HKCFI 1443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 393 of 2021

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 12 October 2018 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Vietnam who entered Hong Kong illegally on 27 April 2015 and surrendered to the Immigration Department on 29 April 2015 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Do Son, Hai Phong, Vietnam. After leaving school he worked as a photographer, got married and raised a family of 2 children.

3.  In 2005 he was sent to prison for 3 years for drugs trafficking, and upon his release in 2008, he changed to work as a fisherman by borrowing a loan from a local money-lender for purchasing a fishing boat, with the loan repayable within 3 years with monthly interests payment on the loan.

4.  However, one day in January 2010 his fishing net was stolen, and as a result the Applicant was unable to carry out fishing and was unable to make any interests payment on his loan, and after having been threatened and beaten several times by the money-lender and his followers, the Applicant in August 2010 fled from his home district to take shelter in his cousin’s place in Nam Dinh and then to Dao Cat Ba without further incidents, but in early 2015 when he heard that the money-lender and his men were still looking for him everywhere, he departed Vietnam in April 2015, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 September 2016 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 15 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 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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and his followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his creditor was a private personal monetary dispute 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 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 parts of Vietnam 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.

7.  On 6 December 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 10 August 2018, and in the absence of any explanation form him for his non-attendance, the Board proceeded to deal with his appeal in his absence and on paper, and on 12 October 2018 it dismissed his appeal and also confirmed the Director’s decision.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s claim and in the absence of any explanation or clarification from him due to his failure to attend the hearing of his appeal without reason that it doubted the credibility of his claim, but found in any event in the absence of any official involvement that state/police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.   

9.  On 19 March 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, and in his supporting affirmation of the same date he merely stated that he does not agree with the decision as grossly unfair and unjust in refusing his claim but without providing any details or particulars or elaboration how it was so or any other proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.  By then the Applicant was also seriously out of time with his 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.

11.  As the last day of the three-month period for him to file his Form 86 fell on 12 January 2019, the Applicant was therefore more than 2 years 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 HKCA, 393.

12.  In the Applicant’s case, a delay of more than 2 years must be considered as extremely inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to find any good or valid reason for his serious delay.

13.  As for the merits, if any, of his intended application, as noted above, the Applicant has also failed to put forward any proper ground for his intended application, 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 reasonably arguable basis for his intended challenge.   

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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.     

16.  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.

17.  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 his 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