PHAM THI HUE v. TORTURE CLAIMS APPEAL BOARD

HCAL 684/2018

[2020] HKCFI 2242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 684 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 8 September 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 59-year-old national of Vietnam who last entered Hong Kong illegally on 24 May 2015 and surrendered to the Immigration Department on 26 May 2015 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Haiphong City, Vietnam.  After leaving school she worked in rearing fish and planting trees business in her home district, got married and raised a family of two children.

3.  In 2009 in order to expand her business she borrowed a loan from a local money-lender repayable by end of 2011 with interest payment on monthly basis until full payment of the loan.

4.  Initially she managed to make her monthly interest payments without problem, but in 2011 her business turned bad and by the end of the year she lost her business and was declared bankrupt, and when she was unable to repay her loan, she was threatened by the money-lender and his followers that she and her family would be killed if she failed to repay her loan.

5.  Fearing for her life, the Applicant therefore fled from her home town for Ho Chi Minh City, and from there she departed for China in August 2012, and then later sneaked into Hong Kong where she was arrested and subsequently deported back to Vietnam.

6.  Upon returning to her home, she was told by her family that her creditor and his followers were looking for her everywhere, and so she fled to another town, and when she was later attacked by some strangers whom she suspected were sent by her creditor, she felt it was not safe to remain in Vietnam, and so on 15 May 2015 she again departed for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 21 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 24 April 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 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 her creditor upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from him, that there was no evidence of any real intention of her creditor to harm or kill her over their loan dispute, that in any event it was a private personal monetary dispute between them 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 working 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 her creditor to locate her.

9.  On 8 May 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, which the Board dealt with in the absence of the Applicant and on papers, and on 8 September 2017 it dismissed her appeal and also confirmed the decision of the Director.

10.  In its decision the Board did not take any issue with the credibility of the Applicant’s claim of her dispute with and threats from her creditor over her loan, but found that it was a private monetary dispute without any official involvement that state/police protection would be available to her upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 19 April 2018 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, and in her supporting affirmation of the same date she merely repeated her claim that she cannot go back to her home country because she would be killed by her creditor for failing to repay her loan without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

12.  The Applicant was however by then also out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

13.  As the last day of the three-month period for her to file her Form 86 fell on 8 December 2017, 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.

14.  In the Applicant’s case, a delay of more than 4 months must be regarded as substantial and excessive, for which she did not provide any explanation, and as the record shows that the decision was sent to her last reported address and as the same stated in her Form 86 and which has not been returned through undelivered mail, I do not find any valid reason for her serious delay.

15.  As for the merits, if any, of her intended application, as noted above the Applicant also failed to put forward any proper or valid ground for her application, and in the absence of any error of law 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 reasonably arguable basis for her intended challenge. 

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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her 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.     

18.  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.

19.  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 extending time to her late application, I refuse to do so 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