LE THI ANH TUYET v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 458/2018

[2019] HKCFI 848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 458 of 2018

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;

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

2.  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/she 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 25-year-old national of Vietnam who entered Hong Kong illegally on 12 June 2016 and surrendered to the Immigration Department on 16 June 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 creditor for failing to repay her loan and/or by her abusive second husband.  She has since been released on recognizance pending the determination of her claim.

2.  The applicant was born and raised in Cát Hải District, Hai Phong, Vietnam.  After leaving school she got married and has a daughter, but after her husband passed away in 2011, she started an online business on fashion and cosmetic to support herself and her daughter.

3.  In 2013 she borrowed 120 million Vietnamese đồng from a money-lender so as to expand her business including opening a shop, with the loan repayable within one year with daily interest payment of 500,000 Vietnamese đồng.  At that time she had met another man with whom she formed a relationship.

4.  However, her business income were unstable and by October 2013 she began to default with her interest payments, as a result the money-lender would come with some men to her shop to press for payments, and when she was still unable to do so, the money-lender would assault her by slapping her and pulling her hair and also caused damages to her shop, and when she reported the matter to the police, they refused to take any action because they regarded it as a private monetary dispute that she should resolve with her creditor privately.

5.  To avoid the threats and harassments from her creditor, the applicant therefore left Vietnam for China and sneaked into Hong Kong on 9 February 2014, but when she discovered that she was pregnant with her boyfriend’s child, she was asked by her boyfriend to return to Vietnam so that they could get married and form a new family.  The applicant therefore surrendered to the police and was subsequently repatriated to Vietnam in March 2014.

6.  Upon returning to Vietnam the applicant married her boyfriend and subsequently gave birth to a son.  She then borrowed 200 million Vietnamese đồng from another money- lender to pay off her loan to the first money-lender, and used the balance to re-start her fashion and cosmetic business so as to meet the interest payments of her second loan.

7.  However, her business did not do well and was eventually closed in June 2015.  As she was unable meet her loan interest payments, the second money-lender sent his men to her home to threaten her, and when she was still unable to make any payment, they abducted her one day in October 2015 to a place in Hai Phong where she was threatened and beaten for two days before she was released with a warning that next time she would be killed if she still failed to repay her loan.

8.  After her release the applicant reported the matter to the police who then brought the money-lender in for investigation, but after he was later released for which she suspected he had paid a bribe, the money-lender came to her home with his men and assaulted both the applicant and her second husband with wooden sticks and iron bars, and before they left the money-lender pointed a gun at the applicant with a warning that if she still failed to repay her loan she would be killed.

9.  As a result of the assaults the applicant and her second husband were hospitalized for several weeks, and upon discharging from the hospital, they fled with their children to Lê Chân District where they stayed for two months without encountering any further threats from the money-lender, but when the applicant discovered that her second husband had developed a drug addiction problem and became abusive towards her, she left him to take shelter at her friend’s place in Ho Chi Minh City where she stayed for three months during which she decided to leave Vietnam to avoid any future risk of harms from him or the money-lender, and so she departed on 18 March 2016 for China, and from there she sneaked into Hong Kong on 16 June 2016 and raised her non-refoulement claim for protection, for which she later completed a Non-refoulement Claim Form on 27 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

10.  By a Notice of Decision dated 19 May 2017 the Director of Immigration (“the 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 (“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”).

11.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the money-lender and/or her second husband upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that her problem with her creditor was a private monetary dispute in which the money-lender just wanted to press her for repayment of her loan with no real intention to seriously harm or kill her, while her problem with her husband was a family domestic dispute again with no real risk of harm from her husband with whom she had still kept in close contact since her departure, that in neither case was there 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 94 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 work 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 the money-lender or her husband to locate her.

12.  On 1 June 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 30 October 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 1 December 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board similarly found no real intention on the part of the money-lender and his men to seriously harm the applicant whom they just wanted to press her for repayment of her loan, that there is no evidence that her second husband had subjected her to severe pain or suffering whether physical or mental in the past, that the local police did respond to the applicant’s complaint and conducted investigation against the money-lender, that reliable COI reveal reforms against police corruptions have taken place in Vietnam, and that in any event the applicant can always relocate to other parts of Vietnam in Ho Chi Minh, Hanoi or Móng Cái where she had previously stayed without any incidents before departing for Hong Kong without any risk of being located by either her creditor or her second husband.  

14.  On 20 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, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  that her life would still be in danger if she is refouled to Vietnam;

(2)  that the Director and the Board failed to take into proper consideration of the serious corruptions in the authorities in Vietnam in assessing her claim; and

(3)  that the COI relied on by the Director and the Board did not accurately or truly reflect the current serious corruptions in Vietnam.

15.  By then however the applicant was late with her Form 86, 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.

16.  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.

17.  As the last day of the three-month period for her to file her Form 86 fell on 1 March 2018, the applicant was therefore late by 19 days, which may not be regarded as excessive or inordinate, but neither can it be deemed as insignificant, for which the applicant did not provide any explanation in her affirmation, and at the hearing she merely claimed that she never received any letter from the Court without any further particulars or elaboration.  As such I am not satisfied that she has given any good reason for her delay.

18.  As for the merits of her intended application, Ground (1) of her complaint is merely a repetition of her claim, while the other two grounds are just broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Board had erred in their decisions, or in what way did they fail to take into account of the relevant COI as to police corruptions in Vietnam when the Director did refer to reliable and updated information detailed in paragraph 21 of his decision showing the current reforms and improved situations in Vietnam, which the Board also properly referenced and considered in its decision.  In the absence of any materials from the applicant that show that their references and COI were outdated or inaccurate, or any elaboration from her as to how they were so, I do not find any basis or merit in these complaints of the applicant.

19.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decisions 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.

20.  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.

21.  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 delay, I refuse to extend time for her late application and dismiss her application accordingly.

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