NGUYEN THI TUYET LE v. TORTURE CLAIMS APPEAL BOARD

HCAL 122/2019

[2020] HKCFI 2413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 122 of 2019

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 3 July 2018 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 50-year-old national of Vietnam who entered Hong Kong illegally on 31 August 2015 and surrendered to the Immigration Department on 1 September 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 creditors for failing to repay her loans.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Haiphong City, Vietnam where she had worked for years in various jobs.  In 2014 she started a grocery store in her home district by borrowing a loan from a local money lender to be repaid within 1 year with interest charged on the loan payable every month.

3.  However, her business did not fare well and by April 2015 she was unable to make any loan repayment to her creditor who then came with several men to make threats of violence against her over her default with her loan repayment.

4.  As she feared for her life, the Applicant borrowed a loan from another money-lender in May 2015 and used the money to pay for arrangements to leave Vietnam, which she did on 22 August 2015 when she 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 25 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 23 May 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”).

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 creditors upon her return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that her problems with her creditors were 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 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 creditors to locate her.

7.  On 2 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, and for which she attended an oral hearing with her lawyer from DLS on 18 May 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board and with submissions made on her behalf by her lawyer.  On 3 July 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s claim of threats from her creditors over her loans but found no evidence of 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 creditors that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 14 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the decisions of the Board, 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 would be harmed or killed by her creditors if returned to Vietnam but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

10.  By then she was also out of time with her Form 86, 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.

11.  As the last day of the three-month period for her to file her Form 86 fell on 3 October 2018, the Applicant was therefore more than 3 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 3 months must be considered as significant, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to her last reported address which is the same as that stated in her Form 86 and that it has not been returned through undelivered mail, I do not see any valid explanation for her delay.

13.  As for the merits, if any, of her intended application, as noted above the Applicant did not put forward any proper ground for her intended application.  As such 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.

14.  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.

15.  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.     

16.  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.

17.  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 her significant 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