VU VAN DUNG v. TORTURE CLAIMS APPEAL BOARD AND ANTOHER

HCAL 425/2021

[2021] HKCFI 984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 425 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 14 July 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Vietnam who together with his wife and infant daughter entered Hong Kong illegally on 28 October 2015 and surrendered to the Immigration Department on 3 November 2015 when they jointly raised a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by the Applicant’s creditor for failing to repay his loan. They were subsequently released on recognizance pending the determination of their claim.

2.  The Applicant was born and raised in Kim Doi II Hamlet, Huu Bang Commune, Kien Thuy District, Hai Phong City, Vietnam. After leaving school he worked in various jobs before running his own business in maintenance and trading of second-hand motorbikes in his home village, married his wife and raised a family of one daughter.

3.  In early 2014 he borrowed a loan from a local loan shark for his business, with repayment by monthly instalments with interest, but by September 2014 he was experiencing difficulty in making his monthly instalments, and as a result his creditor came with his followers to make threats against him, and after one occasion when he was beaten by his creditor and his men and he was later taken to the hospital for medical treatment, the Applicant became fearful for his life and those of his family, and so on 22 October 2015 they departed Vietnam for China, and from there they later sneaked into Hong Kong and raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form (“NCF”) on 22 February 2016 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 25 July 2016 the Director of Immigration (“Director”) rejected the claim of the Applicant and his family on all the 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 of all the relevant circumstances of the claim of the Applicant and his family and assessed the level of risk of harm from his creditor and his men upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, and found that it was a private monetary dispute between the Applicant and his creditor without any official involvement that state or police protection would be available to the Applicant and his family 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 94 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 safely with his family 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 them.

6.  By a Notice of Further Decision dated 19 June 2017 the Director again rejected the claims of the Applicant and his family in the absence of any response from them to an earlier invitation 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”).

7.  By then the Applicant and his family were already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 9 August 2016, and for which the Board did not find necessary to conduct any oral hearing and proceeded to deal with their appeal in their absence and on paper. On 14 July 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board accepted the claim of the Applicant and his family of fear of harm from his creditor over his failure to repay his loan, but found in the absence of any official involvement that state/police protection would be available to them 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 by the creditor that their claim for non-refoulement protection failed on all applicable grounds.

9.  On 24 March 2021 the Applicant filed a Form 86 for himself only 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, and in his supporting affirmation of the same date he merely stated that their decisions in refusing his asylum were unfair and unjust but without providing any details or particulars or elaboration as to why they were so, nor  did he put forward any proper grounds for his intended challenge. He did not request any oral hearing for his application either.

10.  By then the Applicant was however 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 that there is good reason for extending the period without which the application shall be made.

11.  As the last day of the three-month period for him to file his form 86 fell on 14 October 2017, the Applicant was therefore seriously late by almost 3 ½ years 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 almost 3 ½ years must be considered as extremely substantial and excessive, for which he did not provide any explanation in his summons or affirmation, and as such I do not find any good or valid reason for his such serious breach of the rule.

13.  As for the merits, if any, of his intended application, as noted above he has not put forth 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 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 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.     

16.  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.

17.  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 extremely substantial 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