TRAN VAN HUYEN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1551/2018

[2021] HKCFI 1655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1551 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 decisions of Torture Claims Appeal Board dated 1 December 2016 and 20 October 2017 respectively refused; and

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

Observations for the Applicants:

1.  The Applicants are a married couple of Vietnamese nationality who arrived in Hong Kong separately in November 2013, with the wife, the 2^nd Applicant (“A2”) arriving first with their son on 10 November 2013 with permission to remain as visitors up to 17 November 2013 when they did not depart and instead overstayed before surrendering to the Immigration Department on 19 November 2013, while the husband, the 1^st Applicant (“A1”) sneaked into Hong Kong from China on 17 November 2013 and surrendered to the Immigration Department on 20 November 2013, and all three of them subsequently raised a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by the local gangsters for refusing to pay extortion money, of which they agreed that their claim be assessed jointly together. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised in An Lu Thuy Nguyen District, Hai Phong City, Vietnam. After leaving school he operated a stall selling fish, married A2 in 2011 and raised a family with their son in their home district.

3.  In August 2013 some local gangsters came to A1’s fish stall demanding for protection money, and when he refused, they then beat him badly, and when the threats and harassments from those gangsters continued, A1 became fearful for the safety of his family, he therefore departed Vietnam in November 2013 with his family for Hong Kong by different routes, and upon their arrival in Hong Kong he then raised the non-refoulement claim for protection for himself and his family, for which he and A2 jointly completed a Non-refoulement Claim Form (“NCF”) on 3 September 2014 for themselves and their son, and also attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 28 January 2015 the Director of Immigration (“Director”) rejected the claim of the Applicants and their son on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

5.  In his decision the Director took into account all the relevant circumstances of the claim of the Applicants and their son and assessed the level of risk of harm from those local gangsters upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that those gangsters were only after extortion money and it is doubtful that they would still have any adverse interest in the Applicants after all these years, that in the absence of any official involvement that state or police protection would be available to the Applicants 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 93 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to safely move with A2 and their son to other parts of Vietnam away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for those local gangsters to locate them.

6.  On 9 February 2015 the Applicants lodged an appeal for themselves and their son to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which they attended an oral hearing on 27 August 2015 before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 1 December 2016 their appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board found the Applicants’ claim a case of criminal extortion without any evidence of state or official involvement that state or police protection would be available to them and their son upon their return to Vietnam as well as reasonable internal relocation for them to move safely to other areas away from their home district without any risk of being located that their claim for non-refoulement protection failed on all applicable grounds.

8.  Meanwhile the Director on 13 January 2017 on his own initiative invited the Applicants to submit additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and upon receiving and considering their additional submissions the Director by a Notice of Further Decision dated 7 April 2017 also rejected their claim under BOR 2 Risk.

9.  On 20 April 2017 the Applicants again lodged an appeal to the Board against the Director’s Further Decision, and for which the Board did not on this occasion conduct any oral hearing for their appeal and dealt with their appeal in their absence and on paper, and on 20 October 2017 it dismissed their appeal and confirmed the Director’s Further Decision upon finding that they had failed to establish a case under BOR 2 Risk.

10.  On 6 August 2018 the Applicants filed their Form 86 for themselves only without their son for leave to apply for judicial review of both decisions of the Board, but no ground for seeking relief was given in their Form, and in their supporting affirmation of the same date they just repeated their claim as before that their lives would still be in danger in their home country but without putting forward any proper ground for their intended challenge, nor did they request any oral hearing for their application.

11.  By then they were also seriously out of time with their 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 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 them to file their Form 86 as regard the later second decision of the Board fell on 20 January 2018, and hence the Applicants were 6 ½ months late with their application, not to mention that with the earlier first decision of the Board that their delay would be even more serious by almost 1 ½ year late, 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.

13.  In the Applicants’ case, a delay of 6 ½ months regarding the second decision, and never mind the much more serious one with the earlier first decision, must be considered as very substantial, for which the Applicants have never provided any explanation for either case, and as the record shows that the decisions were sent to their last reported address without being returned through undelivered post, I do not see any good or valid explanation for their serious delays.

14.  As for the merits, if any, of their intended application, as noted above the Applicants have not put forward any proper grounds for their intended challenge, and in the absence of any error of law or irrationality of procedural unfairness in their process before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any merits in their intended application either.

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 Applicants’ 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 their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other parts of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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 Applicants’ claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their 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