NGUYEN XUAN DIU v. IMMIGRATION DEPARTMENT

HCAL 373/2018

[2020] HKCFI 1627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 373 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 21 June 2017 refused; and

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

Observations for the Applicant:

1.   The Applicant is a 43-year-old national of Vietnam who entered Hon Kong illegallyon 14 June 2015 and surrendered to the Immigration Department on the following day when he raised a non-refoulement claim on thebasis that if he returned to Vietnam he would be harmed or killed by his creditors for failingto repay his loans.  He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Village Nam Hai, Hai Phong City, Vietnam. After leaving school he worked as a casual worker in his home village and married his wife.

3.  In 2012 he borrowed some loans from his fellow villagers and certain money-lenders to start his own pawn shop business, repaying his loans by monthly instalments with interests.

4.  Initially business was good and he was able to make his loans repayments without problem, but in early 2015 his business turned bad and he started to have difficulty making his loans repayments, and one night in May 2015 one of his major creditors sent several men to his home to demand for repayment, and when the Applicant pleaded for more time to come up with the money, he was threatened by those men before they left that if his loans were not repaid within 10 days, he would be killed.

5.  The Applicant did not report the matter to the police, and instead he fled from his home to hide in his friend’s place, and on 12June 2015 he departed Vietnam for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 31 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 25 November 2016 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 his 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”).

7.  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 his creditors upon his return to Vietnam as low due to the absence or low intensity and frequency of past ill-treatment from them, that his problems with them were all private monetary disputes 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 work experience to move to other part of Vietnam away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditors to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on9 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 21 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board accepted that the Applicant was in the pawn business and might have borrowed money from his creditors and subsequently defaulted with his repayments, but found that with state/police protection as well as reasonable internal relocation for him to move safely to other parts of Vietnam without any risk of being locatedby his creditors that his claim for non-refoulement protection failed on all applicable grounds.  

10.  On 8 March 2018 the Applicant filed his 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 his Form or in his supporting affirmation of the same date in which he merely repeated his claim that his life would be in danger if returned to Vietnam, and that he wants to be allowed to stay in Hong Kong.

11.  The Applicant was also by then seriously out of time with his intended 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.

12.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 21 September 2017, he was therefore about 5 ½ months late with his intended 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.

13.  In the Applicant’s case, a delay of 5 ½ months must be regarded as very substantial or excessive, for which the Applicant did not give any explanation either in his Form or affirmation, and as he did not request for any oral hearing, I found that he has failed to provide any good reason for his serious delay.

14.  As for the merits of his intended application, as already noted above, nor has the Applicant provided any valid ground to challenge the Board’s decision other than asking the court to allow him to remain in Hong Kong, and in the absence of any error of law 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 him to challenge the finding of the Board.

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.  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 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.

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 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 serious 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