NGUYEN NGOC TAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 2047/2020

[2025] HKCFI 4314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2047 OF 2020

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 11 December 2019 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Vietnam who had previously in 2007 entered Hong Kong illegally and was later arrested and repatriated to Vietnam did so again on 11 March 2015, and surrendered to the Immigration Department on 16 March 2015 when he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts and/or by the police for taking part in an unlawful protest against the authorities. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in To 15 Khu Diem Thuy Phuong Cam Binh Cam Pha Quang Ninh, Vietnam. In 2007 he departed Vietnam and entered Hong Kong illegally to look for jobs, and was upon his subsequent arrest repatriated to Vietnam.

3.  In early 2012 he started his own coal miming business with the help of a loan borrowed from a local money-lender to be repaid within 2 years and with monthly interest payments which he initially managed to make from his business income.

4.  However, his business did not fare well, and by late 2012 he was unable to keep up with his monthly interest payments that his creditor started to send men to threaten him, and so he fled to Ho Chi Minh City, but later in 2013 he was located by those men sent by his creditor who then beat him and brought him to Cam Pha City to force him to work in some illegal coal mine of his creditor where many of his co-workers were also in debts to his creditor and like him were forced to work there after they were unable to repay their debts.

5.  One day in late 2014 the police arrived to close down the illegal coal mine, whereupon his creditor forced the Applicant and his fellow workers to take part in a protest against the government’s action, and as a result the Applicant and some of his fellow workers were arrested and detained by police for several days, during which they were interrogated and beaten by the police until one night when the Applicant managed to make his escape and fled to Mong Cai, and on 9 March 2015 he departed Vietnam for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While being released on recognizance pending the determination of his claim, the Applicant was arrested by police on 5 December 2016 for theft, for which he was subsequently convicted and sentenced to prison for 4 months.

7.  By a Notice of Decision dated 28 December 2017 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 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 his creditor to seriously harm or kill him other than to press him to repay his debts or of his alleged arrest and detention by the police or of any adverse interest of the authorities in him and that he was never thereafter arrested again and able to subsequently leave the country for China without any problem, that in any event his problem with his creditor was a private monetary dispute between the 2 of them 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 96 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 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 3 January 2018 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 23 May 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 11 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any creditor over any debts or from the police or authorities over any participation of illegal protest or any arrest or torture by the police that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events as regard his alleged debts due to a local money-lender prior to his departure of Vietnam were true that there was no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between him and his creditor only 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 alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his creditor, while there is no reliable evidence that there is any adverse interest of the Vietnamese authorities or police in him or that he had ever been arrested or detained by police at all that the Board concluded that the Applicant’s claim for non-refoulement protection failed on all the applicable grounds.

11.  On 12 October 2020 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 repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.  By then the Applicant was 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 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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 11 March 2020, the Applicant was therefore some 7 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: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 7 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 11 December 2019 to his lawyer from DLS without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

15.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge. 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 merits in his intended application either.

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 Board rejected his claims essentially on its adverse finding on his credibility for the analysis and reasons set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions made on his behalf by his lawyer, 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, there is simply no reasonably arguable basis to challenge such findings of the Board.

18.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim from his creditor even if real 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.

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.  As I am for the given reasons 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 such serious delay, I therefore 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