TRAN VAN MANH v. TORTURE CLAIMS APPEAL BOARD

HCAL 903/2021

[2021] HKCFI 3525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 903 of 2021

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.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 15 August 2019 refused; and

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

Observations for the Applicant:

1.   The Applicant is a 42-year-old national of Vietnam who entered Hong Kong illegally on 9 September 2015 and was arrested by police on 10 September 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his outstanding debts.  He was subsequently released on recognizance pending the determination of his claim. 

2.   The Applicant was born and raised in Thuy Nguyen District, Hai Phong, Vietnam.  After leaving school he worked as a farmer in his home village, got married and raised a family with a daughter.

3.  In 2013 he started a seafood business with a partner by borrowing a loan from a local money lender repayable within 2 years and with interest payment every month, which he was able to make from his business income. 

4.  However, one day in November 2014 he discovered that his partner had absconded with all their business money and goods, and as a result he was unable to carry on with the business, and when he was unable to repay his loan, his creditor and his followers armed with knives and sticks started to come to his home to threaten him and his family, and after one occasion when both he and his daughter were beaten by those men, the Applicant fled to a neighboring town, and in September 2015 he departed Vietnam for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

5.  By a Notice of Decision dated 27 January 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 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”).

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 his creditor and followers upon his return to Vietnam 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 the Applicant other than to put pressure on him to repay his debts, that in any event it was a private 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 (“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 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 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.

7.  On 9 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, and for which he however failed to attend the oral hearing scheduled on 19 December 2018 before the Board without any explanation, and the Board proceeded to deal with his appeal in his absence and on paper, and on 15 August 2019 it dismissed his appeal and also confirmed the Director’s decision.

8.  In its decision the Board found the evidence and materials previously submitted by the Applicant to the Director and available for his appeal of poor evidential quality, vague and lacked information to corroborate his claim, and that in any event that it was a private monetary dispute between him and his creditor without any official involvement that state/police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.     

9.  On 22 June 2021 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, and in his supporting affirmation of the same date he just repeated his claim of fear of being killed by his creditor over his outstanding debts if refouled to his home country without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

10.  By then the Applicant was also seriously 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 for extending the period within which the application shall be made.

11.  As the last day of the three–month period for the Applicant to file his Form 86 fell on 15 November 2019, he was therefore more than 19 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.

12.  In the Applicant’s case, a delay of more than 19 months must be considered as extremely substantial and excessive, for which he explained at the hearing that at that time he had lost his recognizance paper and was therefore afraid to report to the Immigration Department, he therefore did not do anything about the Board’s decision until his was later arrest by the police and was referred to the Immigration Department that he decided to seek leave to apply for judicial review of the Board’s decision, but that by then he was already out of time with his intended application.

13.  The record shows that the Board’s decision was sent on 15 August 2019 to the Applicant’s last reported address without being returned through undelivered post, and given the fact that it was his own decision not to do anything about it in order to avoid being located by the Immigration Department over his failure to report on his recognizance, I am not satisfied that the Applicant has any good or valid reason for his such serious delay.

14.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge.  In the circumstances, 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.     

15.  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. 

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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.       

17.  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. 

18.  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