Nguyen Thi Thao v. Torture Claims Appeal Board and Another

HCAL 566/2018

[2019] HKCFI 432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 566 of 2018

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

1.   an extension of time for the application for leave to apply for Judicial Review against the decision of the Torture Claims Appeal Board made on 14 December 2017 refused; and

2.   leave to apply for Judicial Review refused.

IT IS FURTHER DIRECTED that:-

3.   if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.   when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal

5.   the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.   if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.   liberty to apply.

Observations for the Applicant:

1.The applicant is a 41-year-old national of Vietnam who entered Hong Kong illegally on 31 May 2016 and was arrested by police on the same day.  After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her loan.  She has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Tinh Bac Giang Province, Vietnam.  After leaving school she got married and worked as a farmer raising crops and poultry together with her husband in the village.

3.For the purpose of expending their business, the applicant and her husband in March 2013 borrowed a sum of US$50,000 from a money lender at a monthly interest payment of US$1,000 but with no deadline for repayment of the loan.

4.They were able to make the monthly interest payments without problem until May 2015 after they had closed down their pig farm due to Swine fever and suffered a heavy financial loss, and when they pleaded with their creditor for more time to make their loan repayment, they were given only 10 days and were warned that they would be killed if they failed to make their payment.

5.Ten days later when the applicant and her husband were still unable to make their payment, the creditor came to their house to damaged their furniture before giving them a further month with the same warning that they would be killed if they still failed to come up with the money, but when they were still unable to make any payment one month later, they were assaulted by the creditor and his men with sticks and knives that the applicant suffered head injuries while her husband was covered with bruises all over his body that both had to be hospitalized after the assailants left.

6.After their discharge form the hospital, the applicant’s husband made a report of the assault to the local police and was told that they would conduct an investigation, and as the applicant and her husband did not dare to return to their home, they took shelter at their friend’s place, but when there did not appear to be any progress with the police investigation, they felt it was not safe to remain in Vietnam, and so in September 2015 her husband departed for China and later sneaked into Hong Kong and raised his claim for non-refoulement protection.

7.On 27 May 2016 the applicant also departed for China before sneaking into Hong Kong several days later and raised her non-refoulement claim on the same basis as her husband, and for which they later completed a joint Non-refoulement Claim Form on 12 April 2017 and jointly attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

8.By a Notice of Decision dated 24 April 2017 the Director of Immigration (“the Director”) rejected their 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 (“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”).

9.In his decision the Director took into account all the relevant circumstances of their claim and assessed the risk of harm to them from their creditor upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from their creditor, that the past conduct of the creditor showed no real intention to kill them other than to force them to repay their loan, that it was a personal money dispute without any official involvement that state or police protection would be available to them 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 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the applicant and her husband as able-bodied adults with work experience to move to other part 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 their creditor to locate them.

10.On 5 May 2017 the applicant and her husband lodged their appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 6 November 2017 before the Board during which they gave evidence and answered questions put to them by the adjudicator for the Board.  On 14 December 2017 their appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found that the evidence suggested that the creditor never intended to cause serious harm or to kill the applicant or her husband other than to pressurize them to repay their loan, that their injuries sustained in the only attack by the creditor did not amount to the minimum level of severity under any of the applicable grounds, that there was no evidence to support their fear that they would not receive proper protection from the police due to corruption, and that being healthy adults with work experience that they would have no difficulty to lead a normal life in Vietnam other than their home district without any risk of harm from their creditor.       

12.On 6 April 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of 19 June 2018 she put forward only one ground for her intended challenge: that both the Director and the adjudicator relied on inaccurate, irrelevant or outdated COI which did not truly reflect the current corrupt situations in Vietnam in their assessment of her claim and hence their decisions in rejecting her claim and to repatriate her to Vietnam were wrong and against her human rights.

13.At the hearing of her application before me the applicant explained that her husband did not join in her application as they had been separated, but she was in any event late with her Form 86, 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 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.

14.In considering whether to extend time the Court will have regard to various matters including the length of the delay, the reasons for the delay, the merits of the intended application, any prejudice to the putative respondent and to public administration, as well as questions of general public importance: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015.

15.In the applicant’s case the Board’s decision was made on 14 December 2017, and hence the last day for her to make her application fell on 14 March 2018, therefore when she filed her Form 86 on 6 April 2018, she was out of time by more than three weeks which cannot be regarded as insignificant, and for which she explained at the hearing that she had been sick in the hospital at that time without providing any further particulars or evidence as to when or where she was hospitalized, but she conceded that she was in the hospital for only a few days.  As such I do not accept her explanation as any valid reason for her delay.

16.As for the merits of her intended application, the sole ground provided by her however consists of just some broad and vague assertions without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the adjudicator had erred in their decision, or in what way were those COI inaccurate or outdated as to the current situation of corruption in Vietnam that could be relevant to her case.

17.In paragraphs 15 – 18 of his decision the Director clearly referred to reliable, relevant and updated COI in assessing and evaluating the latest situations relating to state and police protection and administration of justice in Vietnam which revealed both corruptions and reforms and improvements brought by the government and authorities, all of which were included in the hearing bundles for the applicant’s appeal before the Board and of which no doubt the adjudicator had also considered in assessing the applicant’s claim, and in the absence of any particulars or elaboration from the applicant or any fresh or additional COI to show to the contrary, I am unable to see any reason to interfere with the adjudicator’s findings based on all the evidence and information available to the Board.

18.As has been repeatedly emphasized by the Court of Appeal, 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 being 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 Re Litoun Mounsy [2018] HKCA 537.

19.The fact that it has been established by both the Director and the Board in their respective 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 is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

20.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.

21.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 her delay, I refuse to extend time and accordingly refuse her application.

Dated the 17^th day of May 2019.

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