VU THI HANG v. TORTURE CLAIMS APPEAL BOARD

HCAL 276/2021

[2021] HKCFI 1816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 276 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 (counsel for) the Applicant in open court / the Applicant being absent 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 20 March 2020 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Vietnam who entered Hong Kong illegally on 8 June 2014 and was arrested by police on 23 June 2014. After she was referred to the Immigration Department for investigation, 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, and when her then 15-year old daughter later also arrived in Hong Kong illegally on 20 May 2015 and subsequently surrendered to the Immigration Department, the Applicant also raised a similar claim for her on the same basis which was agreed to be assessed and determined jointly with hers. They were both released on recognizance pending the determination of their claim.

2.  The Applicant was born and raised in Vietnam where she married her husband and raised a family of 2 children, and in 1996 she operated a building materials business.

3.  Between 2007 and 2011 she borrowed two loans from two different local money-lenders for the running of her business with monthly interests payments until discharge of the loans.

4.  However, by 2013 her business suffered heavy losses and she started to have difficulty making her loans repayments, and soon her creditors would send men to threaten to sell her for prostitution or to force her to engage in drugs trafficking for them, and when she refused and was as a result being assaulted by those men on two occasions, the Applicant fled from her home district to Hanoi and then Mong Cai, and in January 2014 she departed Vietnam for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, and upon her daughter’s arrival in Hong Kong, she also raised a similar claim for her for which the Applicant completed a Non-refoulement Claim Form (“NCF”) on 18 August 2017 jointly for both of them and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 22 September 2017 the Director of Immigration (“Director”) rejected the claim of the Applicant and her daughter on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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 all the relevant circumstances of the claim of the Applicant and her daughter and assessed the level of risk of harm from her creditors upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between the Applicant and her creditors without any official involvement that state or police protection would be available to the Applicant and her daughter if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows 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 with her daughter to other parts of Vietnam away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditors to locate them.

7.  On 6 October 2017 the Applicant and her daughter lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but her daughter who was by then already aged 19 subsequently applied to withdraw her own appeal and was granted as withdrawn by the Board on 1 November 2019, leaving only the Applicant’s own appeal before the Board for which she attended an oral hearing on 25 March 2019 during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 20 March 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found no official involvement in the Applicant’s claim of her monetary disputes with her creditors 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 areas 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 3 March 2021 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 or her supporting affirmation, nor did she request any oral hearing for her application.

10.  By then the Applicant was 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.

11.  As the last day of the three-month period for her to file her Form 86 fell on 20 June 2020, the Applicant was therefore more than 8 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 HKCA 393.  

12.  In the Applicant’s case, a delay of more than 8 months must be considered as very substantial and excessive, for which she did not provide any explanation in her affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I am unable to see any good reason for her serious delay.

13.  As for the merits, if any, of her intended application, as noted above the Applicant has failed to put forth any proper ground for her intended challenge, and in the absence of any error of law or irrationality 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 merits in her intended application either.

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 parts 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 serious 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