VU THI HOA alias DOAN THI HA v. TORTURE CLAIMS APPEAL BOARD

HCAL 441/2020

[2024] HKCFI 707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 441 OF 2020

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 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 3 January 2018 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Vietnam who had previously entered Hong Kong illegally in 2007 under a different identity and was subsequently repatriated back to Vietnam after serving some 20 months in prison again entered Hong Kong illegally on 20 December 2013, and almost 4 months later on 11 March 2014 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by a traffic accident victim or his family for failing to pay compensation for his injuries suffered in a traffic accident caused by her. 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 worked as a salesperson, got married and raised a family with one daughter in her home district.

3.  One day in early September 2013 while driving a motorcycle on the road, she lost control of her motorcycle and knocked down and injured a pedestrian, but as she was afraid of being arrested by the police for the accident she sped away on her motorcycle from the scene and went home.

4.  Several days later a woman claiming to be the wife of the injured pedestrian came to the Applicant’s home demanding compensation for her husband’s injuries including medical expenses and damages, and threatened to harm her or to have her arrested by police if she refused to do so, but agreed to give the Applicant more time to come up with the money.

5.  After the woman left the Applicant fled to Mong Cai to hide in a friend’s place, and on 18 December 2013 she departed Vietnam 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 18 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 25 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”).

7.  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 the traffic accident victim or his family upon her return to Vietnam as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of them to harm or kill her other than to press her to pay compensation for the accident, that in any event it 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 areas of the country away from her home district in large cities such as Hanoi where it would be difficult if not impossible for anyone to locate her.

8.  On 6 December 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 September 2017 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 January 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no evidence of any real intention of the traffic accident victim or his family to seriously harm or kill the Applicant over what was essentially a private monetary dispute over the traffic accident between them without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other parts 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.

10.  On 17 March 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date, nor did she request any oral hearing for her application. As such 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 her intended challenge.

11.  By then the Applicant was also 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 to extend the period within which the application shall be made.

12.  As the last day of the three-month period for her to file her form 86 fell on 3 April 2018, the Applicant was therefore almost 2 years 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.

13.  In the Applicant’s case, a delay of almost 2 years must be considered as extremely substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, nor did she request any oral hearing for her application. As such I am unable to see any good or valid justification for her such serious delay.

14.  As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forth 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.

15.  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.

16.  In the Applicant’s case, the fact is that it has been established by the Director and the Board in their respective decisions that the risk of harm in her claim if real 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.

17.  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.

18.  Moreover, the Applicant recently on 17 January 2024 in writing requested to withdraw her application as her problem in Vietnam has been resolved and that it is now safe for her to return to her home country.

19.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is now safe for her to return to her home country, I 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