TUONG DUY TRUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS

HCAL 272/2022

[2022] HKCFI 2485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 272 of 2022

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.      Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted;

2.      Extension of time to apply for leave to apply for Judicial Review be refused; and

3.      Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 27 April 2022 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 26 August 2021 (the “leave application”). The application is lacking in particulars. 

2.  Enquiries with the Board revealed that the Board had never made any decision of that date relating to the Applicant, but had on 13 July 2018 allowed the Applicant’s application to withdraw his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 December 2016 refusing his claim for non-refoulement protection (the “2016 Notice”).  Immediately, it became apparent that the decision in respect of which leave to apply for judicial review was sought was not properly identified.

3.  From the papers obtained from the Director and the Board, the following facts emerged.  The Applicant is a Vietnamese national who first sneaked into Hong Kong from Mainland China on 4 December 2015.  He surrendered to the Immigration Department on 22 December 2015 and made a non-refoulement claim by written signification dated 22 December 2015 and 2 February 2016.  In gist, he claimed that he will be harmed or killed by a moneylender (the “Moneylender”) because he was unable to repay a loan he borrowed from the Moneylender.

4.  In due course, his non-refoulement claim was assessed on all four applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; BOR 2 Risk[3] and Persecution Risk[4].  On 13 December 2016, the Director rejected his claim by the 2016 Notice.

5.  The Applicant filed a notice of appeal dated 28 December 2016 with the Board against the decision in the 2016 Notice.   Then, by an undated letter received by the Board through the Immigration Department on 3 July 2018, the Applicant applied to withdraw his appeal.  His reason for withdrawing the appeal was that his family had repaid the loan for him and it was safe to return to Vietnam.  On 13 July 2018, the Board informed the Applicant that his application to withdraw was allowed and the decision of the Director in the 2016 Notice was confirmed.  On 8 May 2019, the Applicant was repatriated back to Vietnam

6.  However, the Applicant was arrested by the police again in Hong Kong on 17 March 2021.  He was sentenced to 16 months’ imprisonment.  While serving his sentence, he applied by letter dated 8 June 2021 to the Director to make a subsequent claim pursuant to section 37ZO of the Immigration Ordinance (the “Request”).  At the invitation of an immigration officer, he lodged a further letter dated 16 July 2021 providing evidence in writing in support of his Request.  On 26 August 2021, the immigration officer issued a Notice of Decision refusing his Request to make a subsequent claim (the “2021 Notice”).

7.  In response to the Court’s invitation by letter dated 25 May 2022 for submission in relation to his leave application, he responded by letter dated 13 June 2022 that he wished to withdraw his leave application.  By a letter dated 23 June 2022, the Court invited him by letter to confirm that he understood if his application to withdraw is allowed, the decision in the Director’s 2021 Notice will continue to be in force.  Then, he responded by letter dated 28 June 2022 that he wished to proceed with his leave application.

8.  The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

9.  From the above chronological background, it is clear that the decision in respect of which leave to apply for judicial review was sought is the Notice of Decision dated 26 August 2021 issued by the Director (ie the 2021 Notice) and not any decision of the Board.  The Applicant had no disagreement with the decision of the Board allowing his application to withdraw his appeal against the 2016 Notice.  Accordingly, leave was granted to amend the application by substituting the Director as the proposed respondent and his 2021 Notice as the decision in respect of which relief is sought.

10.  The application was filed eight months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it is filed more than five months out of time.  The application is deemed to include an application for leave to apply out of time.

11.  In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Merits is usually a very important factor.  Where the delay is not very substantial, merits is usually the determinant factor.  But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[6] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  The delay in this case is so substantial that leave may be refused on this ground alone.  Nevertheless, for completeness, the Court proceeded to assess the prospect of success in the proposed judicial review, which is the single most determinant factor in an application for leave to apply out of time.

12.  The Applicant, having previously made a torture claim, may not make a subsequent claim except as provided in section 37ZO(2) by providing sufficient evidence in writing to satisfy an immigration officer that:

(a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

The Applicant’s case

13.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.

14.  The Applicant was married and has two children. He received university education.  He worked in the logistic business between 2010 and 2013.  Between 2013 and 2014, he operated his own logistic business. For that purpose, he borrowed a loan of VND 1.50 billion from the Moneylender at an interest of 1% per month.  To his knowledge, the Moneylender is very rich and had triad background.  He was able to pay interest during the first year of the loan.  Thereafter, he was unable to pay due to poor business.  He became bankrupt towards the end of 2014 and was unable to repay the loan or interest. The Moneylender gave him three months to repay his loan and interest.

15.  After three months, the Moneylender and his men came to his home.  He paid them VND 1 billion which was all that his family members could raise for him.

16.  In February 2015, the Moneylender and his men demanded payment of the balance and threatened there would be serious consequence if he was unable to pay.

17.  A month later, the Applicant was assaulted by five to six unknown men in the street.  They were armed with knives.  They assaulted him for a few minutes with fists and kicks.  They threatened him to repay as soon as possible otherwise they would kill him.  The Applicant suffered superficial injuries.

18.  After about half a month, the Applicant met the same group of men.  They demanded repayment and assaulted him with fists and kicks.  He did not suffer serious injuries.

19.  Out of fear of his safety, the Applicant fled to Tỉnh Sơn Lo（山羅省）and stayed there for a few months.  During those few months, he received telephone demands from the Moneylender.  He learned from his wife that the Moneylender and his men had been to their home looking for him but they did not harass his family members.  Then, the Applicant went to Mainland China and from there sneaked into Hong Kong.

20.  The Applicant did not seek help from the police because he thought the police would not protect him because his trouble arose from a personal monetary dispute and he could not identify the assailants.

The Director’s decision in the 2016 Notice

21.  The immigration officer assessed the Applicant’s claim on the basis of the account as he assereted.  He found that the injuries suffered by the Applicant did not attain the minimum level of severity.  From that he inferred that the Moneylender assaulted him in order to coerce him to repay but had no real intention to seriously harm him.  As the Applicant had not been harassed by the Moneylender and his men while he was hiding in Tỉnh Sơn Lo, the immigration officer also inferred that the Moneylender had no means to locate the Applicant anywhere in Vietnam as the Applicant believed.  After reviewing credible country of origin information, the immigration officer was satisfied that the Vietnamese government has been taking actions against corrupt officials and illegal debt collection activities.  He considered the risk of harm to the Applicant could be reduced or prevented because of availability of state protection.  He also considered that being an able-bodied adult with university education and good working and business experience, the Applicant may safely relocate to other cities within Vietnam to avoid the harm and risk.

22.  Applying the law applicable to non-refoulement protection under the USM to the facts found, the immigration officer found the Applicant had failed to prove the factual basis to support his claim for protection under any of the four applicable grounds under the USM.  He then issued the 2016 Notice rejecting his claim for non-refoulement protection.

The Applicant’s claim of changes in circumstances

23.  In his letter dated 8 June 2021, the Applicant alleged that while serving his sentence in Hong Kong between 2015 and 2018, he was informed by his family that the Moneylender had ceased looking for him and hence his family advised him to return to Vietnam.  However, about a year after his return, the Moneylender and his men started looking for him after November 2020.  He was assaulted.  They broke his upper jaw and he lost two teeth.  He felt his life was at risk.

24.  In his letter dated 16 July 2021, he further alleged that as he had not repaid the loan, the Moneylender kept on looking for him.  He had to hide himself and could not find employment or live the life of an ordinary citizen.  His wife divorced him due to pressure created by the circumstances.  Hence, out of his fear for his life, he fled to Hong Kong again in March 2021.

The Director’s decision in the 2021 Notice

25.  The immigration officer assessed the Applicant’s Request on the basis of his assertions in his two letters dated 8 June and 16 July 2021.  He noted the Applicant’s previous claim as set out in the 2016 Notice was based on his fear of harm and death from the Moneylender because he was unable to repay his loan owed to that Moneylender.  He noted that the Director’s decision under the 2016 Notice was that the harm and risk which the Applicant would face on his return to Vietnam was low; that state protection of an adequate standard would be available to the Applicant; and that he could also avoid the risk of harm by internal relocation.  He noted that the Applicant’s appeal against the 2016 Notice was withdrawn by the Applicant and the Board confirmed the Director’s decision in the 2016 Notice, which is therefore final.  He noted that the Applicant’s claim under his Request is based on the same kind of threat from the same Moneylender arising out his inability to repay the same loan owing to the same Moneylender.  He came to the conclusion that there had not been any significant change of circumstances since the previous claim and that the change when taken together with the material previously submitted in support of the previous claim would not give the intended subsequent claim a realistic prospect of success.  Accordingly, he refused the Applicant’s Request.

The legal principle applicable to judicial review

26.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[7].

Grounds and merits of the application for judicial review

27.  The only ground of application for judicial review advanced by the Applicant in his Form 86 and supporting affirmation is that his life will be in danger on his return to Vietnam.  The essence of his ground is that he disagreed with the Director’s finding of fact that he had failed to show a significant change of circumstances since the previous claim and that the change when taken together with the material previously submitted in support of the previous claim would give his intended subsequent claim a realistic prospect of success.  In effect, he is seeking to challenge the Board’s finding of fact which is not permissible.  In the absence of proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

28.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer correctly understood the law and key legal principles applicable to the making of a subsequent claim under the USM.  Basically, he found the Applicant had failed to discharge his burden of proving his substantial change of circumstances and a realistic prospect of success of his intended subsequent claim.  This is a finding of fact solely within the province of the Director as the decision maker, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the 2021 Notice or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The Applicant’s intended subsequent claim is not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

29.  The application was five months out of time.  The delay was inordinate. On this basis alone, leave to file his application to apply out of time may be refused.  The Applicant offered no explanation for the delay.  Having fully considered the merits, the Court was of the view that the intended judicial review had no prospect of success.  These two factors are determinative in refusing to grant them leave to apply out of time.  It would be a futile exercise of its discretion to grant extension of time to enable the Applicant to apply for a judicial review which is bound to fail.  To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration.  The application does not raise any questions of general public importance.  Accordingly, the application for extension of time to file the application for leave to apply for judicial review and the application for leave to apply for judicial review are refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] CACV 63/2015 (unreported) 3 November 2015

[6] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[7]  [2018] HKCA 524 at [14(1)]