BUI MANH CUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 22/2021

[2021] HKCFI 1796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 22 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 28 June 2018 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Vietnam who entered Hong Kong illegally on 2 August 2015 and was arrested by police on the following day. 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 for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in 1990 in Hong Kong while his parents were being held in a detention camp as asylum seekers until 1995 when the family returned to Vietnam where he was brought up in Haiphong City.

3.  After leaving school he worked in various jobs, and in 2014 he with a partner started a fish and shrimps farming business with a loan from a local money-lender repayable within one year and with monthly interest payments.

4.  However, in late 2014 he and his partner had to close down their business after the farm was destroyed by a typhoon, and when they were unable to repay their loan, their creditor started to send men to threaten them, and after one occasion when the Applicant was beaten by those men and with death threats made against him if he still failed to repay the loan, he became fearful for his life, and so on 2 March 2015 he departed Vietnam 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 28 June 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.  Whilst being released on recognizance pending the determination of his claim, the Applicant was arrested on 3 August 2016 for possession of a false identity card and for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 17 months.     

6.  By a Notice of Decision dated 25 July 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 (“Ordinance”) (“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”).

7.  In his decision the Director took into account 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 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”) 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 to other parts of Vietnam 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.

8.  On 8 August 2017 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 9 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 28 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found inconsistencies and implausibility in the Applicant’s evidence which undermined the credibility of his claim that it doubted his departure of Vietnam was due to his alleged fear of harm from any creditor, and that in any event in the absence of any official involvement that state or police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds. 

10.  On 5 May 2020 the Applicant was convicted of the offence of using a forged identity card and for undertaking unauthorized employment and was sentenced to prison for 17 months. While in prison he made a request to the Immigration Department on 18 May 2020 to raise a subsequent claim for non-refoulement protection under Section 37ZO of the Immigration Ordinance.

11.  By a letter dated 2 July 2020 the Director required him to provide further information and evidence in writing in support of his request within 14 days.

12.  On 13 July 2020 the Applicant replied and submitted that his problem with his creditor in Vietnam still remained unresolved, that his creditor was still looking for him everywhere in Vietnam that he was still fearful for his life, and therefore he requested to stay in Hong Kong.

13.  By a Notice of Decision dated 11 September 2020 the Director refused to allow the Applicant to make a subsequent claim upon finding that the information and evidence provided by him for his request were all related to his previous dispute with his creditor which had all been duly considered in his previous claim before the Director as well as the Board, and that it is not accepted that they constitute a significant change of circumstances which would give his subsequent claim a realistic prospect of success as stipulated under Section 37ZO(2) of the Ordinance.        

14.  As Section 37ZR of the Ordinance does not provide any appeal to the Board against such a decision of the Director in refusing to allow the making of a subsequent claim, the Applicant on 7 January 2021 filed his Form 86 for leave to apply for judicial review, but instead of that decision of the Director, it is the earlier decision of the Board dated 28 June 2018 which dismissed his previous claim that he stated in the Form that he now wants to challenge, but no ground for seeking relief was given, and in his supporting affirmation of the same date he just repeated his claim that he cannot return to his home country as his life would still be in danger there and that he did not agree with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

15.  It is obvious that by then the Applicant was also seriously out of time with his 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 there is good reason for extending the period within which the application shall be made.

16.  As the last day of the three-month period for him to file his Form 86 for leave to apply for judicial review of the Board’s decision fell on 28 September 2018, the Applicant was therefore more than 2 years and 3 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 HKCA 393.

17.  In the Applicant’s case, a delay of more than 2 years must be considered as extremely substantial and excessive, for which he did not provide any explanation, 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 reason for his such serious delay.

18.  As for the merits, if any, of his intended application, as noted above, the Applicant has failed to put forward 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.  

19.  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.

20.  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 his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.     

21.  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.

22.  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 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