Bui Quang Minh v. Torture Claims Appeal Board

HCAL 387/2018

[2019] HKCFI 1043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 387 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 28 June 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

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 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 57-year-old national of Vietnam who last entered Hong Kong illegally on 10 January 2015 and was arrested by police on 12 January 2015.  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 his creditors for failing to repay his loans.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Hai Phong, Vietnam.  After leaving school he got married, formed a family with two sons, and worked as a carpenter in Hai Phong.

3.However, due to poverty in his hometown, he left Vietnam twice in 1989 and 1996 to come to Hong Kong illegally to look for jobs and was subsequently caught and repatriated to Vietnam in 1994 and 1996 respectively.

4.In 2010 he borrowed loans from two creditors to start a construction business for which he had to make monthly instalment payments at 10% interest to his creditors, but when his business became unsuccessful, he started to have difficulty keeping up with his loan repayments, and by June 2014 he was unable to make any repayment at all, and as a result he was threatened and beaten by his creditors on three occasions, but of which he did not report to the police as he thought that the police were under the influence of the creditors who were wealthy businessmen.

5.In July 2014 he fled to Ho Chi Minh City where he stayed without incidents, but as he was unable to find any stable job there he returned to Hai Phong in late 2014 and hid in a friend’s place, and on 5 December 2014 he again departed Vietnam for China, and from there he later sneaked into Hong Kong in January 2015, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 13 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 15 August 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim 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 (“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”).

7.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his creditors to the applicant upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that they had no real intention to seriously harm the applicant other than to force him to repay his loan, that 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 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 as an able-bodied adult with work experience to move to other part of Vietnam away from his home district in large cities such as Thanh Hóa or Ho Chi Minh City where he had stayed before without incidents and where it would be difficult if not impossible for his creditors to locate him.

8.By a Notice of Further Decision dated 21 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his 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”).

9.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 24 August 2016, but the Board did not find it necessary to hold any oral hearing for the appeal, and dealt with the matter on paper.  On 28 June 2017 the Board dismissed the appeal and confirmed the Director’s decisions.

10.In its decision the Board did not take issue with the credibility of the applicant’s claim of being pursued by his creditors for repayment of his loans, but found that his alleged ill-treatments from them did not amount to the minimum level of severity under any of the applicable risks, that his problems with his creditors were private monetary disputes that state or police protection would be available to him, as well as reasonable internal relocation that it would not be unduly harsh for him to move safely to other cities in Vietnam to avoid his creditors that his claim for non-refoulement protection failed on all applicable grounds.  

11.On 9 March 2018 the applicant filed his 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 or in his supporting affirmation of the same date in which he merely repeated his claim that he would be killed by his creditors if sent back to his home country.

12.Furthermore, he was by then way 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 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.

13.In the applicant’s case, the three-month period within which he was to file his Form 86 expired on 28 September 2017, and hence he was late by more than five months with his present 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.A delay of more than five months must be considered as substantial or excessive, for which the applicant did not provide any explanation, nor did he put forward any grounds for his intended challenge, and in the absence of any legal error or procedural unfairness being shown or identified by the applicant, I am unable to see any basis or merits in his intended application.

15.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.

16.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 substantial delay, I refuse to extend time and accordingly dismiss his application.

Dated the 25^th day of October 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