VU THI MAI v. ORTURE CLAIMS APPEAL BOARD

HCAL 1397/2018

[2021] HKCFI 1200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1397 of 2018

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 25 January 2018 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 50-year-old national of Vietnam who had entered Hong Kong on various occasions in the past under different identities, and on the last occasion on 17 March 2012 she arrived under her present identity with permission to remain as a visitor up to 24 March 2012, during which she registered her marriage to a local resident, and on 24 March 2012 she submitted an application for a dependent visa based on her marriage to her husband when she was arrested by police and charged for making a false representation to an immigration officer, and for which she was subsequently convicted and sentenced to prison for 21 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, 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 loans. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Lap Le Commune, Thuy Nguyen District, Haiphong City, Vietnam. In 1989 she first entered Hong Kong illegally and formed a relationship with a man and gave birth to a child before she was eventually arrested and repatriated to Vietnam in 1997.

3.  In January 1999 she illegally entered Hong Kong again but was deported in September 1999, and 2 months later she sneaked back into Hong Kong until December 2000 when she was repatriated.

4.  Upon returning to Vietnam, she worked as a fruits hawker in her home district where she formed another relationship with her boyfriend and gave birth to a son.

5.  In 2001 at her boyfriend’s request to enable him to start a business, the Applicant borrowed two loans from two local money-lenders with interests payable each month, but in 2002 her boyfriend’s business failed, and as a result she was unable to make any loan repayment to her creditors who then sent men to threaten and beat her, and so she fled to hide in her mother’s home in the same district for the next 10 years until 2012 without incidents but as she still feared for her life, she therefore departed Vietnam on 17 March  2012 for Hong Kong under a different identity, for which she was subsequently arrested, charged and sentenced to prison, and upon her discharge and pending deportation, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 14 October 2016 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 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her creditors or their men upon her return to Vietnam 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 her for some 10 years prior to her departure, that they were private monetary disputes 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 310,000 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 where it would be difficult if not impossible for her creditors to locate her.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 December 2017 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 25 January 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s evidence confused and inconsistent especially as to the central issues regarding her claim as vague and lacking in details that it was not satisfied as to the general credibility of her claim of having borrowed money from money-lenders for her boyfriend’s business or being threatened with violence as alleged, that in any event the fact that she had lived in her home district for some 10 years without being located by her creditors further undermined her claim or that there was no real chance that her creditors would locate her should she return to Vietnam that it was not satisfied that she has established that there are any substantial grounds which support the conclusion that she will face any real risk of harm from her creditors that her claim for non-refoulement protection failed on all applicable grounds.   

10.  On 16 July 2018 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 his Form, and in her supporting affirmation of the same date she merely stated that she disagreed with the decision as she still feared that she would be killed by her creditors but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.  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.

12.  As the last day of the three-month period for her to file her Form 86 fell on 25 April 2018, the Applicant was therefore some 11 weeks 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: see AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of 11 weeks must be considered as significant, for which she did not provide any explanation in her supporting 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 do not see any good or valid reason for her delay.

14.  As for the merits, if any, of her intended application, as already noted that the Applicant has not put forward any proper ground or identified any error of law or irrationality or procedural unfairness in her process before the Board or in its decision, and as such I do not find any reasonably arguable merits or basis for her intended challenge.    

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 49 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 reasonably arguable basis to challenge the finding of the Board.  

17.  Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

18.  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.

19.  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 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