TRAN DINH NAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 3466/2019

[2022] HKCFI 2481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3466 of 2019

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Vietnam who entered Hong Kong illegally on 22 November 2015, and on the following day he surrendered to the Immigration Department and 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 unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school he worked in various casual jobs in his home district.

3.  In 2013 he purchased a property with a loan from a local money-lender repayable within 2 years and with interest charged on the loan payable every month until discharge of the loan.

4.  Initially the Applicant managed to make his monthly interest payments from his income and with assistance from his parents, but by mid-2014 he started to have difficulty keeping up with the loan payments, and after being threatened and beaten by men sent by his creditor, he became fearful for his life and fled to Ho Chi Minh City.

5.  However, later when he heard that his creditor had sent men there looking for him, the Applicant went to Mong Cai and on 20 November 2015 departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While released on recognizance pending the determination of his claim, the Applicant was arrested by police on 4 March 2017 for theft for which he was subsequently convicted and sentenced to prison for 4 months.

7.  By a Notice of Decision dated 30 October 2017 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 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 them 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 96 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 the country 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.

9.  On 14 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 10 January 2019 before the Board without any explanation, nor did he subsequently request another oral hearing for his appeal. The Board therefore proceeded to deal with his appeal in his absence and on paper, and on 7 March 2019 dismissed his appeal and confirmed the Director’s decision.

10.  In its decision the Board accepted on the basis of the Applicant’s case as set out in the information and documents in the hearing bundle his claim of fear of harm from his creditor over his outstanding debts, but found that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to his home country to negate any such risk that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 22 November 2019 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 or in his supporting affirmation of the same date.

12.  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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 7 June 2019, the Applicant was therefore more than 5 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 eth 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 more than 5 months must be considered as very substantial and inordinate, for which he did not give any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid reason for his such serious delay.

15.  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, 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.

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 also been correctly established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also confirmed by the Board, 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.  Furthermore, the Applicant recently on 22 July 2022 filed an affirmation to request to withdraw his application as his family has already paid off his debts to his creditor on his behalf that he now wants to return to his home country as soon as possible.

20.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review or any reason for his serious delay, and in view of his latest confirmation that it is now safe for him to return to his home country, I 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