DOAN THI HUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 395/2020

[2024] HKCFI 2853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 395 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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Vietnam who entered Hong Kong illegally on 20 June 2015 and surrendered to the Immigration Department on 23 June 2015 when she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditors over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Quang Ninh Province, Vietnam. After leaving school she married her husband, and in 2014 started her own shop selling clothing in her home district with the help of a loan borrowed from 2 local money-lenders with monthly interest payments which she managed to make from her business income.

3.  However, in February 2015 she lost her shop to a fire, and when she was unable to repay her loan, her creditors started sending men to threaten her, and after being beaten by those men on one occasion in April 2015 when she was warned that next time if she still failed to repay her loan, she would be killed.

4.  As a result the Applicant became fearful for her life and fled to Mong Cai, and on 10 June 2015 she departed Vietnam for China, and from there she later sneaked into Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 7 November 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 (“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”).

6.  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 creditors upon her 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 them to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her 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 96 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 her home district in large cities such as Hanoi where it would be difficult if not impossible for her creditor to locate her.

7.  On 16 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be dealt with by the Board, the Applicant one month later on 15 December 2017 in writing applied to the Board to withdraw her appeal by claiming that it is safe for her to return to Vietnam, and upon being satisfied that the Applicant had good reason to do so, and that she fully understood the consequences of the withdrawal of her appeal, the Board on 21 December 2017 in writing accepted the Applicant’s application and directed that her appeal be withdrawn, and also confirmed the Director’s decision.

8.  Somehow the Applicant did not depart Hong Kong to return to Vietnam as she so claimed, and instead more than 2 years later on 12 March 2020 she filed a Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date, nor did she provide any explanation of why having withdrawn her appeal against the Director’s decision but more than 2 years later that she now wanted to do so.

9.  By then the Applicant was also seriously out of time with her 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.

10.  As the three-month period for her to file her Form 86 against the Director’s decision, or for that matter the Board’s decision would have clearly expired more than 2 years ago, 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.

11.  In the Applicant’s case, a delay of more than 2 years as regard either decisions must be considered as substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, nor as noted above any explanation as to why her change of mind to challenge either decision after having withdrawn her appeal as noted above. As such, I am unable to see any good or valid reason for her such serious delay.

12.  As for the merits, if any, of her intended application, as noted also that the Applicant has failed to put forward any ground for her intended challenge of the Director’s decision. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in his decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

13.  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.

14.  In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in her claim if real 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.

15.  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.

16.  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 on the Immigration Department’s subsequent confirmation of her recent departure of Hong Kong, I 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