BUI THI MI v. IMMIGRATION DEPARTMENT AND ANOTHER

HCAL 497/2018

[2020] HKCFI 296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 497 of 2018

     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 4 May 2017 refused; and

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

Observations for the Applicant:

1.   The Applicant is a 36-year-old national of Vietnam who entered Hong Kong illegally on 22 September 2015 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her husband’s creditor for failing to repay his loan.  She was subsequently released on recognizance pending the determination of her claim.

2.   The Applicant was born and raised in An Thang Village, An Lao County, Hai Phong City, Vietnam.  After leaving school, she married her husband and raised a family of two children in her home village.

3.  In 2007 her husband borrowed a loan from a local money lender at monthly interest payment and with the Applicant as a guarantor.

4.  Although her husband was able to make his monthly interest payments, in about late 2008 the money-lender started to press him for repayment of the entire loan, and when her husband was unable to do so, his creditor would send his men to his home to harass and threaten him for payment, and after he was beaten badly by those men on one such occasion, her husband started to stay away from the home village to avoid the money‑lender and his men.

5.  Despite her husband’s absence, his creditor continued to send his men to the Applicant’s home to harass the family, with threats to kill her husband if they found him, and so in 2011 her husband departed for China and Hong Kong until 2013 when he felt it was safe to return to Vietnam.

6.  However, when his creditor heard about his return, he would again send his men along to harass the Applicant’s husband, and so in 2014 her husband left Vietnam again to sneak into Hong Kong where he was subsequently arrested and repatriated to Vietnam, but in order to avoid his creditor, her husband again left for Hong Kong in August 2015 and raised a non-refoulement claim for protection.        

7.  On 19 September 2015 the Applicant followed suit by departing Vietnam for China, and from there she sneaked into Hong Kong and also raised her non-refoulement claim but separately from her husband’s claim, for which she completed a Non-refoulement Claim Form on 24 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.  By a Notice of Decision dated 30 June 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”),risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reasonable likelihood that the risk of harm from her husband’s creditor is real and foreseeable upon her return to Vietnam due to the absence of past ill-treatment from him or his men, that it was a private 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 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 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 husband’s creditor or his men to locate her.

10.  By a Notice of Further Decision dated the 16 March 2017 Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 8 July 2016, and for which the Board did not conduct any oral hearing for her appeal and instead dealt with it on papers in her absence.  On 4 May 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board did not take issue with her claim of being pursued by her husband’s creditor for repayment of his loan, but found no evidence of any ill-treatment being inflicted on the Applicant other than some verbal threats, that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant, as well as reasonable internal relocation for the Applicant to safely move to other cities of Vietnam such as Ho Chi Minh City without undue hardship to re-establish herself and without any risk of being located by her husband’s creditor or his men that her claim for non-refoulement protection failed on all applicable grounds.     

13.  On 27 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, nor did she request for any oral hearing for her application, and in her supporting affirmation of the same date she merely repeated her claim that she would be at risk of harm from her husband’s creditor if returned to Vietnam and asked to be allowed to remain in Hong Kong until her problem has been resolved in her home country.  

14.  By then the Applicant was also way out of time with her intended 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.

15.  As the last day of the three-month period for her to file her Form 86 fell on 4 August 2017, the Applicant was therefore more than 7 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393. 

16.  In the Applicant’s case, a delay of more than 7 months must be considered as very substantial and excessive, for which she did not provide any explanation in her supporting affirmation.  As such I do not find any good or valid reason for her serious delay.

17.  Nor as noted above has she put forward any ground for her intended challenge, and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any merits or prospect of success in her intended application.   

18.  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 the Applicant’s claim 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.  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.

20.  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