NGUYEN VAN TUNG v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1276/2018

[2019] HKCFI 2552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1276 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 13 November 2017 refused; and

2.  the application for 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 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 37-year-old national of Vietnam who entered Hong Kong illegally on 5 October 2015 and surrendered to the Immigration Department on 7 October 2015 when he raised a non-refoulement claim on the basis that if he returned to Vietnam hewould be harmed or killed by his creditor for failing to repay his loan.  He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Vietnam. After leaving school he worked as a farmer in his home village, got married and raised a family of two children.

3. In 2015 he decided to go into poultry business by borrowing a loan from a local money lender repayable within one year and with interest payable per month until full payment of the principal loan.

4. Initially the business was doing well and he was able to make his monthly interest payments on time, but in June 2013 his poultry was hit by a plague and died, which caused his business serious financial losses, and when he started to have difficulties making his loan repayment, he was warned by his creditor that if he failed to repay his loan within two months, he would be killed.

5. Two months later in September 2015 the money-lender came to his home with some men to demand repayment of the loan, and when the Applicant was unable to come up with the money, they threatened to beat him, but the Applicant managed to plead for one more day to get his money, and so they left after giving him a final warning that if he still failed to settle the loan by the next day, they would kill him.

6. The Applicant did not report the threats to the police or authority, but fled with his wife to Hanoi after placing their children in the care of his mother-in-law, and from there his wife then left for Macau, while he also departed Vietnam on 2 October 2015 for China where he sneaked into Hong Kong, and upon his surrender to the Immigration Department, he raised his non-refoulement claim for protection, for which he 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.

7. By a Notice of Decision dated 28 April 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all applicable grounds including risk of tortureunder PartVIIC 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”).

8.  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 creditor upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his creditor was a private personal monetary dispute 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 95 million people spread across a vast territory of more than 310,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult withwork 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 creditor to locate him.

9.  On 15 May 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but for which the Board did not find it necessary to arrange any oral hearing for the Applicant’s appeal and dealt with it in his absence and on paper.  On 13 November 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted the Applicant’s account of being pressed by his creditor for repayment of his loan and did not take any issue on the credibility of that claim and hence did not require any oral hearing, but found that the claimed threats from the creditor did not amount to any real risk of harm or attain the minimum level of severity under any of the applicable risks, and that with state/police protection and reasonable internal relocation available for the Applicant to move safely with his family to other parts of Vietnam where it would be impossible for his creditor to locate him that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 4 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward a single ground for his intended application: that the Director and the Board had failed to take proper account of corruptions in Vietnam as the foreign COI did not accurately reflect the true situation.

12.  By then the Applicant was however late 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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 13 February 2018, the Applicant was therefore late by more than four months 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 merit 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.  

14.  In the Applicant’s case, a delay of more than four months must be considered as significant or substantial, for which he explained at the hearing that as he was unrepresented and was not aware of the law, he did not know when or how to apply for judicial review until he was informed by his immigration officer when by then he was already way out of time with his intended application.  Ignorance of the law of course can never be accepted as any explanation or reason for its non-compliance, and as such I do not accept that the Applicant has provided any valid reason for his substantial delay.

15.  As for the merit, if any, of his intended application, as noted above the Applicant did not provide any particulars or specifics or elaborations in support of his single ground for his intended challenge, and given the nature of his claim and the fact that he never soughtassistance from the police or authority, I do not find any relevancy in the state of corruptions in Vietnam to his claim, nor do I find this ground reasonably arguable for his intended application.

16.  As has been repeatedly emphasized by the Court of Appeal, 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.  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.

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 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