PHAM BA HUY v. TORTURE CLAIMS APPEAL BOARD

HCAL 2084/2023

[2024] HKCFI 429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2084 OF 2023

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 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 24 November 2022 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Vietnam who entered Hong Kong illegally on 23 November 2020 and was arrested by police on 8 December 2020. 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, Hai Phong, Vietnam. After leaving school he worked in various jobs including in the barber shops and the factories in his home district.

3.  In 2018 he started a fish farm business by borrowing a loan from a local money-lender with monthly interest payments until settlement of the loan which he initially managed to pay from his business income.

4.  However, soon the Applicant started to default with his loan repayment, and after several months when he still failed to repay his loan, his creditor sent men to beat him severely that he suffered cuts and bruises all over his body.

5.  After the assault, and as the death threats from his creditor persisted, the Applicant in June 2019 fled to Ho Chi Minh City to take shelter in a friend’s place where he subsequently found a job working in a shoe factory.

6.  One day in February 2020 while he was on his way home from work, the Applicant was knocked down by a man on a motorcycle, and as he suspected that the man was sent by his creditor to kill him, the Applicant felt it was no longer safe to remain in Vietnam, and so on 12 November 2020 he departed 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 18 August 2021 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 29 September 2021 the Director of Immigration (“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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by 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 them to seriously harm or kill him other than to press him to repay his loan, that in any event it was a private monetary dispute between him and his creditor only 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 100 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 areas of the country away from his home district in large cities such as Da Nang where it would be difficult if not impossible for his creditor to locate him.

9.  On 15 October 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 4 May 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 November 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted his claim of fear of harm from his creditor that caused him to leave his home country to come to Hong Kong to seek protection, and that in any event any such risk if real arose from a private monetary dispute between the Applicant and his creditor only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 22 November 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly as not fair or reasonable as required by the Wednesbury test in failing to recognize that the Applicant’s right to life must be protected by criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Adjudicator failed to give the Applicant sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)  That the Board failed to appreciate or give proper weight and importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)  That the Board failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which is a clear case of unfair attitude shown by the Board which in itself is enough to render the decision void; and

(6)  That the Board failed to attain high standard of fairness in failing to recognize that corruption and incompetency of the administration in the Applicant’s home country is a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that its decision should be considered unreasonable in the scope of public law.

12.  By then the Applicant was however 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 si good reason to extend 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 24 February 2023, the Applicant was henceforth almost 9 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.

14.  In the Applicant’s case, a delay of almost 9 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, nor did he subsequently attend the scheduled hearing of his application without explanation, and as the record shows that the Board’s decision was sent on the same day of 24 November 2022 to his then reported address without being returned through undelivered post, I am unable to see any good reason or justification for his such serious delay.

15.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant for his intended challenge as listed above are all just some bare and vague assertions of his without any relevant or necessary details or particulars or elaborations as to how they apply to his case, or how did the Adjudicator or the Board act in a procedurally unfair or improper manner or that the decision is unfair or unreasonable, or what relevancy were extra-judicial killings or State Acquiescence to the Applicant’s case, or what evidence is there that the Applicant had been tortured by the state law enforcement agencies or politicians when the factual basis of his claim even on his own case was a private monetary dispute between him and his creditor without any state or official involvement at all. As such I do not find any of these grounds reasonably arguable for his intended challenge, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, nor do I find any merits in his intended application either.

16.  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.

17.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their decisions that the risk of harm in his claim even if real 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.  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.  In the premises, as I am for the given reasons 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