VU THI HUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 558/2024

[2024] HKCFI 1746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 558 OF 2024

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.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 31 August 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 43-year-old national of Vietnam who entered Hong Kong illegally on 19 January 2022, and was arrested by police on 9 February 2022. After she was referred to the Immigration Department for investigation, 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 over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Phuong Nam Hai, Quan Hai An, Hai Phong, Vietnam. After leaving school she married her husband and raised a family with 2 children in her home district.

3.  In early 2021 she joined her friend’s seafood products trading business with the help of a loan borrowed from a local money-lender for her share of the business capital, and for which she was required to pay monthly interests to her creditor until full repayment of her loan.

4.  However, one day in July 2021 her business partner disappeared with all their business capital and assets that their shop had to be closed down, and when the Applicant was unable to repay her loan, her creditor started to send men to threaten and beat her, and after being threatened that she would be killed if she still failed to repay her loan, the Applicant fled from her home to Hai Phong City to hide in a friend’s place, and on 17 January 2022 she went to Mong Cai and departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 May 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 17 June 2022 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”).

6.  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 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 them to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her 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 100 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 her home district in large cities where it would be difficult if not impossible for her creditor to locate her.

7.  On 28 June 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 22 August 2023 before the Board during which she confirmed the evidence in her documents in the hearing bundle for her appeal and answered questions raised of her claim by the Adjudicator for the Board. On 31 August 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor that caused her to leave her country to come to Hong Kong to seek protection, that even if her account of events prior to her departure from Vietnam were true that there was no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event such risk if real arose from a private monetary dispute between her and her 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 that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 5 April 2024 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 to which she just attached a copy of the Board’s decision but without putting forward any proper ground for her intended challenge.

10.  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.

11.  As the last day of the three-month period for her to file her Form 86 fell on 30 November 2023, the Applicant was therefore more than 4 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.

12.  In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which she explained at the hearing of her application that she was then being detained by the Immigration Department and hence had had to seek help from others with her application which caused the delay.

13.  As the record shows that the Board’s decision was sent on the same day of 31 August 2023 to the Applicant at her then reported address without being returned through undelivered post, and while being detained there would be the inevitable delays with mails and restricted access to legal assistance, but given the length of the Applicant’s delay, I am not satisfied that they could amount to proper justification for her serious default with the filing of her application.

14.  As for the merits, if any, of her intended application, as noted above that the Applicant failed to put forward any proper ground for her intended challenge in her Form or affirmation, nor was she able to do so at the hearing of her application other than just repeating her claim as before. 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 either.

15.  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.

16.  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.

17.  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.

18.  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 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