NGUYEN KHANH DUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 92/2018

[2019] HKCFI 2573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 92 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 4 September 2017 refused; and

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

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1. The Applicant is a 26-year-old national of Vietnam who entered Hong Kong illegally on 24 November 2014 and surrendered to the Immigration Department when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by the authorities for evading compulsory military service and/or that he would suffer horrible prison conditions if convicted for such offence.  He was subsequentlyreleased on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Đồ Sơn District, Hải Phòng City, Vietnam. While he was still in Vocational School, he in 2012 received a letter from the local authorityrequiring him to register at his local office for compulsory military service, as it was the law in Vietnam that all males upon reaching the age of 18 must enlist for military service for two years unless exempted due to full-time education.

3. As the Applicant was then still studying in the vocational school, he asked his school to inform the authority, which the school did and he was therefore exempted from military service for the time being.

4. However, in September 2014 when he was close to completing his course in the vocational school, he received another request from the authority to enlist for military service,and when he tried to extend his exemption, his request was refused, and several days later some men claimed to be from the local authority came to his home and reminded him to undergo medical examination for his military service.

5. As the Applicant was then studying for his final examination, and as he had heard stories from his friends of how they had been bullied and ill-treated by senior ranking officers during their military service which caused him to resist joining the military service,he therefore just ignored the warnings from those men from the local office.

6. However, as those men had continued to come to the Applicant’s home to press him to join the military service, and had on two occasions even dragged him out of his home to beat him by punching him, and with warnings that he would be put in prison if he still refused to enlist for military service.

7. Fearing that he would be arrested and prosecuted for evading military service and that he would suffer in terrible prison conditions, the Applicant decided to leave Vietnam,which he did on 23 November 2014 when he departed for China, and from there he sneakedinto Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 30 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 31 December 2015 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 Article33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found his feared treatment from the authorities upon his return to Vietnam as low due to the absence or low intensity and frequency of past ill-treatment from them, that he failed to produce any evidence that he will risk being ill-treated during his military service and that such fear was far-fetched, that there was no reliable evidence that those men who threatened and assaulted him were from the local authority that in the absence of 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 while prison conditions were austere and overcrowded but generally not life-threatening and with access to basic health care, and that if the Applicant were to be arrested and prosecuted upon his return to Vietnam, it was in accordance with the penal code of Vietnam and that he would be put through proper legal and judicial process in Vietnam that his non-refoulement claim for protection was not established under any of the applicable grounds.  

10.  By a Notice of Further Decision dated 7 December 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his 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 ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 8 January 2016, and for which he attended an oral hearing on 27 March 2017 before the Board during which he declined to give any evidence but did answer some questions raised of his claim by the adjudicator for the Board.  On 4 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board accepted that the Applicant may have left Vietnam to avoid being enlisted in military service, which according to COI was common amongst young men by prolonging their education or other strategies, but refused to accept his assertions that he would be bullied or ill-treated while in military service, or that he would be harmed or killed by officials for evading military service, or that he would suffer horrible conditions in prison if convicted for evading military service, of which the Board found according to COI including the UNHCR Handbook that such penalties would not normally be regarded as persecution, that fear of persecution and punishment for desertion or draft-evasion does not of itself constitute well-founded fear of persecution, and that a person will not be considered as a refugee if his only reason for desertion or draft-evasion is his dislike of military service, which is the case of the Applicant, or fear of combat in the absence of anyother reason to fear persecution or any evidence that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion, of which none applies to the Applicant’s case, that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 18 January 2018 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, and in his supporting affirmation of the same date he merely repeated his claim that he would be arrested by the authorities if returned to Vietnam and that his life would be in danger if sent to prison.

14.  By then the Applicant was in fact 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.

15.  As the last day of the three-month period for him to file his Form 86 fell on 4 December 2017, the Applicant was therefore 1 ½ months 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: 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 1 ½ months cannot be regarded as insignificant or insubstantial, for which he did not provide any explanation either in his Form 86 or affirmation, and as he did not request for any oral hearing.  As such I do not accept that he has provided any good reason for his delay.

17.  As for the merits of his intended application, in the absence of any reasonably arguable ground put forward by him for his intended challenge, or any error of law or procedural unfairness in his process before the Board or in the Board’s decision being identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board, nor do I see any prospect of success in his intended application.

18.  As has been repeatedly emphasized by the Court of Appeal, evaluation of 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.

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 his delay, I refuse to extend time and accordingly dismiss his 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