DANG TUAN SON v. TORTURE CLAIMS APPEAL BOARD

HCAL 1914/2020

[2025] HKCFI 328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1914 OF 2020

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 the Applicant 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 7 May 2018 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Vietnam who had previously in 2010 and 2011 entered Hong Kong illegally and was upon arrest subsequently repatriated to Vietnam but again on 27 March 2015 sneaked back into Hong Kong, and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditors over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Haiphong, Vietnam. After leaving school he worked as a construction worker, formed a relationship with his girlfriend and raised their family with a son in his home district.

3.  In 2010 he together with his girlfriend started their seafood products business with the help of a loan borrowed from some local money-lenders with monthly interest payments, but as their business did not fare well, and when the Applicant defaulted with his interest payments, his creditors started to come with their followers to threaten him, and after being beaten by them on several occasions, the Applicant fled from his home and departed Vietnam in December 2010 for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police, he was repatriated to Vietnam on 18 March 2011.

4.  However, as the threats from his creditors persisted, the Applicant again on 29 December 2011 departed Vietnam for China and then sneaked into Hong Kong, and again upon his arrest by the police he was on 19 January 2012 repatriated to Vietnam.

5.  Upon returning to Vietnam, the Applicant took shelter in various places of his friends in Hai Durong and Haiphong, but when he later heard that his creditors were still looking for him everywhere with threats to kill him, the Applicant on 25 March 2015 again departed Vietnam for China, and from there he again 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 10 August 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 26 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 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditors 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 his creditors to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditors 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 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 areas 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 creditors to locate him.

8.  On 7 November 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before his appeal could be heard the Applicant by a letter dated 3 April 2018 requested to withdraw his appeal, and by a Decision dated 7 May 2018 the Board allowed his request to withdraw his appeal upon being satisfied that his request was freely sought, that he fully understood the consequences of his withdrawal, and that he had good reason to do so in that he believed it was safe for him to return to his home country, and accordingly the Board directed that his appeal be withdrawn, and that the Director’s decision be confirmed.

9.  However, some 2 years later on 24 September 2020 the Applicant filed his 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 his Form or in his supporting affirmation of the same date in which he just stated that he does not agree with the Board’s decision as his life would still be in danger in his home country but without providing any necessary or relevant details or particulars or elaboration as to why it would be so, nor did he put forward any proper ground for his intended challenge either in his Form or at the hearing of his application.

10.  By then the Applicant was also 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 to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 to challenge the Board’s decision of 7 May 2018 fell on 7 August 2018, not to mention the even earlier decision of the Director, the Applicant was therefore more than 2 years 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.

12.  In the Applicant’s case, a delay of more than 2 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, nor was he able to do so at the hearing of his application. As such, and as the Board’s decision was sent on the same day of 7 May 2018 to the Applicant’s then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

13.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge of either the decision of the Director or the Board, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

14.  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.

15.  In the Applicant’s case, the Board allowed the withdrawal of his appeal at his own request and upon being satisfied that he had good reason to do so, and in the absence of any argument or evidence from the Applicant that such withdraw of his appeal was not valid or that there had been a significant change of circumstances since the withdraw to justify re-instating his appeal but which he however failed to raise with the Board, I do not find any reasonably arguable basis to challenge the decision of the Board (see Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669, 13 June 2019).

16.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real 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.

17.  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 the Director’s consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s decision to withdraw his appeal.

18.  Moreover, the Applicant at the hearing of his application confirmed that he has since been able to raise a subsequent non-refoulement claim to the Director that he is content not to pursue his present leave application for judicial review of the earlier decisions of either the Director or the Board as regard his previous 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