VU QUANG HUY v. TORTURE CLAIMS APPEAL BOARD

HCAL 639/2023

[2023] HKCFI 1727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 639 OF 2023

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 20 January 2023 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Vietnam who entered Hong Kong illegally on 30 April 2020 and was arrested by police on 5 June 2020 for theft for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim to the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his outstanding debts.

2.  He was subsequently released on recognizance pending the determination of his claim.

3.  The Applicant was born and raised in Hai Phong, Vietnam. After leaving school he assisted his father in the family’s food production business in his home district.

4.  In late 2018 he started to run his own cyber café business by borrowing a loan from a local money-lender repayable within 2 years and with monthly interest payments which the Applicant managed to do initially, but by early 2020 due to the Covid-19 pandemic, his business deteriorated badly that he defaulted with his interest payments, and that his creditor started to make threats against him.

5.  One day in February 2020 his creditor came with his followers to the Applicant’s home to demand for repayment of his loan, and when he was unable to do so, they beat him violently with iron bars that he suffered cuts and bruises all over his body.

6.  After another beating in April 2020, the Applicant became fearful for his life, and so he fled to Mong Cai, and on 23 April 2020 he departed Vietnam for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 May 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 21 June 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 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”).

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 his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of them to seriously harm or kill him other than to press him to repay his loan, 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 330,000 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 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.

9.  On 7 July 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 July 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 January 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor over his outstanding debts but found no evidence of any real intention of his creditor to seriously harm or kill him other than to press him for repayment of his loan, and 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 upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 2 May 2023 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 or in his supporting affirmation of the same date in which he just asserted that the decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his country but without providing any further details or elaboration as to how he was so deprived of such an opportunity, nor did he request any oral hearing for his application.

12.  By then the Applicant was however also out of time with his 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 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.

13.  As the last day of the 3 month-period for him to file his Form 86 fell on 20 April 2023, the Applicant was therefore almost 2 weeks 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 HKC 393.

14.  In the Applicant’s case, a delay of almost 2 weeks cannot be regarded as insignificant, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his delay.

15.  As for the merits, if any, of his intended application, the sole complaint put forward by the Applicant as noted above that he was not given an opportunity to clarify his case or situation in his home country but without any further details or elaboration as to how it was so, the fact is that he clearly did attend an oral hearing for his appeal before the Board during which he was able to give evidence and make representation of his case without any restrictions or difficulties. As such 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 or any merits in his intended application.

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 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 part 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.

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 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 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