Dinh Xuan Thuy v. Torture Claims Appeal Board

HCAL 695/2018

[2020] HKCFI 2220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 695 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 July 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 54-year-old national of Vietnam who together with his 22-year old son entered Hong Kong illegally on 28 September 2014, and on 8 October 2014 they surrendered to the Immigration Department and 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 due to his failure to repay his loan.  They were subsequently released on recognizance pending the determination of their claim.

2.The Applicant was born and raised in Hainan City, Vietnam.  After leaving school he worked as a fisherman, got married and raised a family of three children.

3.In about 1990 he and his wife started to run a grocery store in their home district to earn their living.  Due to poor business and in order to maintain his store, the Applicant in 2010 borrowed a loan from a local money-lender with monthly interest payments until discharge of the loan.

4.However, his business did not improve, and in early 2012 he started to have difficulties making his monthly interest payments, and the money-lender therefore sent his men to demand for payment from him, and when he was unable to do so, they vandalized his shop and his home, and threatened to kill him and his family if he still failed to repay his loan.   

5.The Applicant never reported the threats to the police as he suspected that they were under the influence of the money-lender, but as he was fearful for the safety of himself and his family, he therefore fled with them from their home town to take shelter in a relative’s place in another district, but when he heard that the money-lender had sent his men looking for him everywhere, he felt it was no longer safe to remain in Vietnam, and so on 25 September 2014 he departed Vietnam with one of his sons for China, and from there they sneaked into Hong Kong and raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form on 5 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 8 November 2016 the Director of Immigration (“the Director”) rejected the claim of the Applicant and his son on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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”).

7.In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and his son and assessed the level of risk of harm from the money-lender and his men upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between the Applicant and the money-lender without any official involvement that state or police protection would be available to the Applicant and his son if resorted to, and that reliable and objective Country of Origin Information 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 working experience to move with his son to other part of Vietnam away from his home district in large cities such as Hanoi or Ho Chi Minh City where it would be difficult if not impossible for the money-lender or his men to locate them.

8.On 17 November 2016 the Applicant and his son jointly lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not conduct any oral hearing as it did not take any issue with the credibility of their claim and proceeded to deal with their appeal on paper in their absence.  On 19 July 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s claim of threats of harm from his creditor over their loan dispute, but found that it was a localized risk that with state/police available upon his return to Vietnam with his son, and with reasonable internal relocation for them to move safely to other area away from their home district without any risk of being located by the money-lender that their claim for non-refoulement protection failed on all applicable grounds.    

10.On 20 April 2018 the Applicant filed his Form 86 for himself only 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 merely repeated his claim that he would be killed by his creditor if refouled to his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.  As such 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 for his intended challenge.

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

12.As the last day of the three-months period for him to file his Form 86 fell on 19 October 2017, the Applicant was therefore 6 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 of 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 6 months must be considered as very substantial and excessive, for which he did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to his last reported address as the same stated in his notice of appeal as well as his present application, and that it has never been returned through undelivered mail, I do not see any valid reason or explanation for his serious delay.        

14.As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forward any proper or valid ground for his intended challenge, 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 him, I do not find any reasonably arguable basis to challenge the finding of the Board.   

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 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 part 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.     

17.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.

18.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 to extend time for his late application, I refuse to do so and accordingly dismiss his leave application.

Dated the 9^th day of September 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