TRAN HUY PHUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 964/2022

[2022] HKCFI 3449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 964 of 2022

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 11 January 2022 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 55-year-old national of Vietnam who entered Hong Kong illegally on 15 July 2021 and was arrested by police on 29 August 2021. 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 some motorcycle owners arising from their dispute over the damage to their motorcycles in a parking lot where the Applicant worked as a security guard.

2.  The Applicant was born and raised in Ha Long City, Quang Ninh Province, Vietnam. After leaving school he worked in the transportation and construction fields, and in 2020 started to work as a security guard in the parking lot of a shopping mall in his home district.

3.  One night on 10 July 2021, 2 groups of customers were fighting in the parking lot where the Applicant worked, during which someone set fire to some motorcycles parked there which were all burnt down before the police arrived.

4.  Later in the same night some of the owners came to collect their motorcycles, and when they found them to be complete burnt down and totally ruined, they blamed the Applicant for their loss and demanded compensations from him, but the Applicant denied any responsibility and ignored their.

5.  On the following day a man claimed to be a local gangster came to the Applicant’s home to demand compensation for those motorcycles owners, and when the Applicant refused, the man punched him and broke things in his home, and warned him that if he still refused to pay compensation next time when he returned, he will be killed.

6.  After the assault the Applicant became fearful for his life, and so on 15 July 2021 he departed Vietnam for China, and from there he later sneaked into Hong Kong, and after 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 October 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 1 December 2021 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”).

8.  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 those motorcycles owners upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that in any event 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”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 102 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 to other part 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 anyone to locate him.

9.  On 14 December 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, in which he just repeated his claim as before without identifying any error of law or irrationality or procedural unfairness in his process before the Director or in his decision for his appeal, but before his appeal could be dealt with by the Board, the Applicant by a written notice dated 5 January 2020 to the Board requesting to withdraw his appeal/petition, and on 11 January 2022 the Board in writing informed the Applicant that his appeal had been withdrawn on that day at his request, and that no further action will be taken by the Board in respect of his appeal/petition as his non-refoulement claim had been considered as finally determined by the Director.

10.  However, some 9 months later on 19 September 2022 the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the Board’s decision as he cannot return to his home country where his life would still be in danger without putting forward any proper grounds for his intended challenge, in particularly as to why he now wants to challenge the Board’s decision which allowed him to withdraw his appeal upon his own written request, nor did he ask for any oral hearing for his application.

11.  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 for extending the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 11 April 2022, the Applicant was therefore more than 5 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 HKC 393.

13.  In the Applicant’s case, a delay of more than 5 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered mail, I do not see any good or valid reason for his serious delay.

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

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 Applicant’s case, the Board allowed him to validly withdraw his appeal/petition and dismissed it accordingly at his own request in the sense of being the result of a deliberate and informed decision, the appeal was no longer extant and the Board became functus officio with no jurisdiction to take any step regarding the appeal as his non-refoulement claim had been considered as finally determined by the Director, as notwithstanding the lack of determination on the merits, the dismissal of an appeal on its valid withdrawal nevertheless disposed of the appeal, as otherwise there would be no finality in the determination of such claims, and that much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals: see Re Das Purnima Rani [2019] HKCA 669, and in the absence of any evidence from the Applicant to suggest that his withdrawal of his appeal was somehow invalid, or that there was any error of law or irrationality or procedural unfairness in the Board’s decision to accordingly dismiss his appeal, I do not find any reasonably arguable basis to challenge the finding of the Board or any merits in his intended application.

17.  Furthermore, the fact is that it was in my judgment correctly established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there would in any event be no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  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 the Director’s consideration and assessment of the Applicant’s claim or in the Board’s consideration of his request to withdraw his appeal.

19.  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