Nguyen Van Dat v. The Director of Immigration and Another

HCAL 1147/2018

[2020] HKCFI 1893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1147 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.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 19 January 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Vietnam who entered Hong Kong illegally in September 2015 and subsequently surrendered to the Immigration Department and 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 was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Hanoi, Vietnam.  After leaving school he engaged in various business, and in 2009 he purchased a piece of land from the government for sand mining business by borrowing several loans from his neighbours as well as two local loan sharks at monthly interest payments until discharge of the loans.

3.However, starting in March 2014 he was having difficulty making his loans repayments, and upon receiving threats from his creditors the Applicant fled to Ho Chi Minh City to hide in his brother’s place, but when he heard that his creditors were looking for him everywhere, he felt it was no longer safe to remain in Vietnam, and so one day in August 2015 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 28 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 28 April 2017 the Director of Immigration (“the 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”).

5.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 his creditors upon his return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that in the absence of 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 95 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 part of Vietnam away from his home district in large cities such as Da Nang where it would be difficult if not impossible for his creditors to locate him.

6.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 12 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence about his claim of which he had given three different versions of claimed loans and threats from his creditors to the Director and the Board that it found the core of his account lacked credibility that it rejected his claim on the basis that he sought to embellish his evidence in connection with some material issues during his appeal hearing, and that in any event that his problems with his creditors were private personal monetary disputes without any official involvement that state/police protection would be available to the Applicant upon his return to Vietnam that his claim for non-refoulement protection failed on all applicable grounds.        

8.On 20 June 2018 the Applicant filed his Form 86 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 repeated his claim that his life would be in danger if returned to Vietnam, as those COI relied on in their decisions failed to truly reflect the real reality of corruptions in Vietnam but without providing any proper particulars or elaborations how they were so, nor did he put forward any further or other proper ground for his intended challenge.  Nor did he appear at the hearing of his application.

9.By then the Applicant was also late 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 within which the application shall be made.    

10.As the last day of the three-month period for him to file his Form 86 fell on 19 April 2018, the Applicant was therefore 2 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.

11.In the Applicant’s case, a delay of 2 months must be considered as excessive or substantial, for which he did not provide any explanation in his supporting affirmation, nor did he appear at the hearing of his application, and as the record shows that the Board’s decision was sent on the same day to his last reported address which was the same as stated in his Form 86 and without being returned through undelivered mail, I do not see any reason for his delay.

12.As for the merit, if any, of his intended application, as noted above he has not put forward any proper or valid ground for his intended challenge other than some broad and vague assertions without any particulars or elaborations or proper basis in support of such assertions.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 71 – 80 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.  

15.Furthermore, the fact is that it has been 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, a decision also confirmed by the Board, 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 delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 11^th day of August 2020. 

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