PHAM THI QUYEN v. IMMIGRATION DEPARTMENT AND ANOTHER

HCAL 561/2018

[2020] HKCFI 1776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 561 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 8 August 2017 refused; and

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

Observations for the Applicant:

1.   The Applicant is a 40-year-old national of Vietnam who entered Hong Kong illegally on 5 September 2014 and surrendered to the Immigration Department on 10 September 2014 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim.

2.   The Applicant was born and raised in Haiphong City, Vietnam.  After leaving school she married her husband to raise a family of two children, and together they ran a restaurant in their home district.

3.  In February 2010 they decided to expand their restaurant business, and borrowed a loan from a local money-lender to be repaid within one year but with their house pledged as collateral and with interest payment every month until full payment of the loan.

4.  Initially the Applicant and her husband managed to make the monthly interest payments without difficulties, but by February 2011 when their restaurant business had seriously declined, they were unable to pay off their loan and requested for a further 6 months to repay it, to which the creditor agreed.

5.  However, by August 2011 when they were still unable to pay off their loan and pleaded for more time, the money-lender threatened that their house would be confiscated if the loan was still not repaid within 3 months.

6.  In November 2011 the money-lender came with his men to their restaurant to demand for repayment of the loan, and when they were still unable to do so, the money‑lender and his men then turned over tables and broke things in the restaurant, and before they left, they were warned that their house would be confiscated if the loan was not repaid within 4 months.

7.  By March 2012 when the loan still remained unpaid, the money-lender and his men came to their restaurant to again damage things and threatened to sell their house.

8.  Two months later one day in May 2012 the money-lender came with his men to their home and drove the Applicant and her family out of their house, claiming to have confiscated the property.  As a result the Applicant and her family therefore took shelter in a relative’s place, but when they later heard that selling their house was still sufficient to pay off their loan, and that the money-lender was looking for them everywhere threatening to kill them, the Applicant decided to flee to Phuong Bai Chay in Tinh Quang Ninh while her husband brought their children to another place.

9.  One day in August 2014 the money-lender located the Applicant in Phuong Bai Chay and threatened to kill her, but when she pleaded for one last chance to come up with the money to pay off the loan, the money-lender agreed to give her until the next day when he would return for the money or failing which he would kill her.

10.  As a result the Applicant decided to leave Vietnam to save her life, and so she departed for China, and from there she later sneaked into Hong Kong and raised his non‑refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 21 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

11.  By a Notice of Decision dated 26 October 2016 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 her 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”).

12.  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 her creditor or his men upon her return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention on the part of her creditor to harm or kill her other than pressing her for repayment of her loan, 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 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 her home district in large cities such as Hanoi where it would be difficult if not impossible for her creditor to locate her.

13.  On 8 November 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which the Board did not take any issue with the credibility of her claim and dealt with her appeal on papers without any oral hearing.  On 8 August 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

14.  In its decision the Board accepted the Applicant’s claim of being pursued by her creditor for repayment of her loan, but found that even on her own case that she had never been ill-treated in any severity other than verbal threats, and that with state/police protection available as well as reasonable internal relocation options for her to move safely to other parts of Vietnam away from her home district to re-establish her life and work without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

15.  On 6 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that if she returned to Vietnam she would be killed by her creditor but without putting forward any proper or valid grounds for her intended challenge.  Nor did she request any oral hearing for her application.

16.  By then she was also late 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.

17.  As the last day of the three-month period for her to file her Form 86 fell on 8 December 2017 after discounting the month of August 2017 for the court vacation, the Applicant was therefore almost 4 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

18.  In the Applicant’s case, a delay of 4 months must be considered as significant or substantial, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent to her last reported address and has never been returned through undelivered mail, I am unable to see any good reason for her serious delay.

19.  As for the merits of her intended application, as noted above the Applicant also failed to put forward any proper or valid ground in support, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by her, I do not find any reasonably arguable basis for her to challenge the finding of the Board.

20.  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.

21.  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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part 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.

22.  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.

23.  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 significant 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