VY THI AN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2329/2020

[2025] HKCFI 4848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2329 OF 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 9 November 2017 be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The Applicant is a 60-year-old national of Vietnam who entered Hong Kong illegally on 11 May 2016 and surrendered to the Immigration Department on 12 May 2016 when 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 husband’s creditor over his unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Thon Dong man, Xa Nghia Phuong, Huyen Luc Nam, Tinh Bac Giang, Vietnam. After leaving school she worked as a farmer, married her husband and raised a family with 2 children in her home district.

3.  In 2014 her husband started his own trading business with the help of a loan borrowed from a local money-lender to be repaid within 1 year and with monthly interest payments.

4.  However, in June 2014 her husband lost his business due to a fire, and when he was unable to repay his loan, and after his creditor had sent men to threaten him, one day in October 2014 her husband failed to return home and disappeared without any news, and when his creditor was unable to locate him, he then sent his followers to demand the Applicant to repay her husband’s debts with threats, and after being beaten by those men on one occasion in November 2014, the Applicant fled to Bac Ninh where she made her living by working as a hawker.

5.  However, one day in January 2015 she was located by her husband’s creditor who attacked her with a knife and cut her left hand that she was subsequently taken to the hospital for medical treatment.

6.  In January 2016 the Applicant returned to her home to take care of her children, and one day in February 2016 her creditor and followers again came to demand her to repay her husband’s debts, and when she was still unable to do so, her husband’s creditor gave her one last warning that next time he would kill her if she still failed to repay her husband’s debts, and so the Applicant became fearful for her life and fled to Mong Cai, and on 8 May 2016 she departed Vietnam for China, and from there she later sneaked into Hong Kong and surrendered to the Immigration Department and raised her non‑refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 29 December 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”).

8.  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 husband’s 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 her husband’s creditor to seriously harm or kill her other than to press her to repay her husband’s debts, that in any event it was a private monetary dispute between her husband and his creditor only 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 Ho Chi Minh City where it would be difficult if not impossible for her husband’s creditor to locate her.

9.  On 12 January 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not find it necessary to hold any oral hearing and proceeded to deal with the appeal on papers based on all the materials and information provided by the Applicant to the Director and available in the hearing bundle before the Board. On 9 November 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her husband’s creditor over his unpaid debts that caused her to leave the country to come to Hong Kong to seek protection, but found no reliable evidence of any real intention of her husband’s creditor to seriously harm or kill her other than to press her to repay her husband’s debts, and that in any event it was a private monetary dispute between her husband and his creditor only 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 alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband’s creditor that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 27 November 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date, 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 9 February 2018, the Applicant was therefore some 2 years and 9 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.

14.  In the Applicant’s case, a delay of 2 years and 9 months must be considered as extremely 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 of 9 November 2017 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

15.  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, 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 merits in her intended challenge of the Board’s decision 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 fact is that it has been established by both 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.

18.  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.

19.  For all 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 such 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