VAN THI HONG TUOI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1675/2021

[2024] HKCFI 848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1675 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 the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Vietnam who entered Hong Kong illegally on 18 August 2020 and was arrested on 17 September 2020, for which she was subsequently charged and convicted with the offences of illegal entry and undertaking unauthorized employment, and was sentenced to prison for 15 months, during which she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her unpaid debts.

2.  The Applicant was born and raised in Cai Be, Tien Giang, Vietnam. After leaving school she married her husband and worked various jobs in her home district.

3.  In 2017 she and her husband borrowed several loans from a local money-lender for her husband’s own business with monthly interests payments until discharge of the loans.

4.  However, her husband instead spent all the money on his gambling and failed to repay their loans, and later in 2018 he ran away with another woman, and so the money-lender and his men came to the Applicant’s home to demand for repayments of the loans, and when she was unable to do so, they then on one occasion produced a gun which they threatened to shoot her next time if she still failed to repay the loans.

5.  As she became fearful for her life, the Applicant fled to Ho Chi Minh City to take shelter in a friend’s place, and on 16 August 2020 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 24 May 2021 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 her creditor and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay the loans, 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 98 million people spread across a vast territory of more than 310,000 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 her creditor to locate her.

8.  On 8 June 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be heard by the Board, the Applicant less than 2 months later on 2 August 2021 wrote to the Board to request to withdraw her appeal, as she stated as follows:

“Today I write this letter with the content. My previous problem in Vietnam has been solved almost completely. Now I can return to my country. There are I applied to withdraw all my previous claims in Hong Kong so I can come back my home town early I sincerely thank you and I look forward to hear from you.”

9.  In response the Board on 4 August 2021 wrote to the Applicant to seek clarification regarding her application for withdrawal of her appeal/petition, but to which it did not receive any further reply or response from the Applicant.

10.  By a letter dated 17 August 2021 the Board informed the Applicant that it acceded to her request and directed that her appeal/petition be withdrawn upon being satisfied that her application was freely sought, that she had good reason to do so in that she considered it safe to return to Vietnam, and that she understood the consequences of her withdrawal, and that it also confirmed that the Director’s decision shall remain valid.

11.  However, more than 3 ½ months later on 9 December 2021 the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form, and in her supporting affirmation of the same date she just asserted that the decision has been reached unfairly without allowing her an opportunity to clarify her case and situation in her country but without providing any further or relevant details or particulars or elaboration as to how it was so, nor did she request any oral hearing for her application.

12.  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.

13.  As the last day of the three-month period for her to file her form 86 fell on 17 November 2021, the Applicant was therefore some 3 weeks 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.

14.  In the Applicant’s case, a delay of 3 weeks must be considered as substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her substantial delay.

15.  As for the merits, if any, of her intended application, as noted above that the Applicant has failed to put forward any proper ground for her intended challenge of a decision by the Board which acceded to her own request to withdraw her appeal. As such, and in the absence of any error of law or irrationality or procedural unfairness in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge or any merits in her intended application either.

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 Board directed that her appeal be withdrawn at her own request and upon being satisfied that she had good reasons to do so and was fully aware of the consequences of her action, and that it has been well established by the Court of Appeal that once the Board has properly disposed of an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any further step regarding the appeal, and that notwithstanding the lack of determination on the merits, the appeal has nevertheless been properly and validly disposed of: see Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669, 13 June 2019.

18.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s 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.

19.  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 the Director’s consideration and assessment of the Applicant’s non-refoulement claim or the Board’s decision to withdraw/dismiss her appeal.

20.  Moreover, the Applicant recently on 2 February 2024 in writing requested to “cancel” her application as she now wants to return to her home country.

21.  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 of her wish 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