Vu Thi Thuy v. Torture Claims Appeal Board

HCAL 1419/2019

[2020] HKCFI 2707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1419 of 2019

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;

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 14 December 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 58-year-old national of Vietnam who entered Hong Kong illegally on 19 November 2015 and was arrested by police on 28 December 2015. After she was referred to the Immigration Department for investigation, she raised 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 was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Haiphong City, Vietnam. After leaving school she worked as a kindergarten teacher, married her husband and raised a family of 2 sons.

3.In 2013 she and her husband decided to start their own clothing business by borrowing a loan of 600 million Vietnamese dong from a local money lender repayable within 3 years with interests charged on the loan payable every month.

4.Initially the Applicant and her husband were able to make their monthly interest payments to their creditor, but in August 2015 they started to have difficulty doing the same due to their poor business, and after one occasion in late August 2015 when they were beaten with wooden sticks by the money lender and his followers with a warning that they would be killed if they still failed to repay their loan, her husband left home in early September 2015 and disappeared without any trace.

5.Several weeks later when the money lender and his men returned and found her husband gone, they threatened the Applicant and cut her forehead with a knife, and warned her that next time if she still failed to repay the loan, she would be killed.             

6.Fearing that the money lender and his men would return to kill her, the Applicant therefore on 18 November 2015 departed for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she 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.             

7.By a Notice of Decision dated 1 September 2016 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 (“the Ordinance”) (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 her creditor or his men upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there was no real intention on their part to seriously harm or kill her other than to force her to repay her 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 working experience to move to other part of Vietnam away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

9.By a Notice of Further Decision dated 14 November 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her 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”).

10.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 15 September 2016, and for which she attended an oral hearing on 23 November 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 14 December 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found the stated facts of the Applicant did not amount to torture as they did not show harm or threats as instigated by a state agent or in any official capacity, while the nature of her alleged injuries which did not require hospitalization did not amount to severe pain or physical or mental suffering reaching the minimum level of severity on the duration of treatment, its physical or mental effects, that her claimed fear of harm from her creditor is undermined by the fact that she failed to raise her claim upon arrival in Hong Kong until her arrest by the police, and that in any event that it was a private monetary dispute between them that state/police protection would be available to her upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.  

12.On 24 May 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge which can be summarized as follows:

(1) that it was unreasonable or irrational for the Board to find that the injuries caused by her creditor on her including those inflicted on her forehead did not suggest major injury or reach the minimum level of severity to constitute torture under Torture Risk;

(2) that the Board failed to obtain medical report or evaluation as to her injuries before concluding that “the facts do not show physical or mental pain or suffering” which was bias and/or procedural unfairness;

(3) that the Board erred in law in considering BOR 2 risk together with BOR 3 risk or found that they both failed for the same reasons;

(4) that the Board failed to properly and fully understand the severity of corruptions in the Vietnamese government and authorities that police protection would not be available to ordinary citizens like the Applicant upon her return to Vietnam;

(5) that the Board failed to properly understand the Vietnamese policy on internal relocation as citizens are required to register their status in their home district and hence they would be allowed to relocate to other cities without approval of the authorities or otherwise they would lose their rights to social securities and benefits;

(6) that the Board wrongly underestimated the risk exposed to the Applicant as her creditor was influential and could bribe the authorities for her information so as to locate her anywhere in Vietnam; and

(7) that the Board was biased against her in unfairly and unreasonably rejecting her credibility because she was afraid to raise her claim when she first arrived in Hong Kong and had had to rely on her friends to assist her to first settle before raising her claim.    

13.By then the Applicant was out of time with her Form 86, 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.

14.As the last day of the three-month period for her to file her Form 86 fell on 14 March 2019, the Applicant was therefore more than 2 months late with her 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 AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicant’s case, a delay of more than 2 months must be considered as significant, for which she explained in her affirmation that she was then applying for legal aid in respect of her application but when she was refused legal aid she was then already out of time with her Form 86.

16.While it is true that the Applicant did right after the Board’s decision apply for legal aid, as evidenced by the documents exhibited to her supporting affirmation, and that her application was refused by the Legal Aid Department only on 1 March 2019 and with the reasons for refusal sent to her on 14 March 2019, it is also clear that the time taken to apply for and obtain legal aid could not and should not account for the failure to file the Form 86 within time: see AW supra at [37].   

17.I shall next turn to the merits, if any, of the intended application with reference to the Applicant’s proposed grounds for her intended challenge, which is a crucial factor in determining whether the court should exercise its discretion to extend the period within which the application shall be made.

18.Firstly, on the basis of the Applicant’s own case and the nature of her claim of threats from her creditor correctly found by both the Director and the Board as a private monetary dispute and at best a localized risk, and given the relevant COI referred to by the Director which were also available before the Board and properly considered by the Adjudicator, and in the absence of any COI or documentary evidence to the contrary from the Applicant, I do not find any merits in her Grounds (4) – (6) which are relevant mainly to the general situations in Vietnam rather than the Applicant’s own situation, nor do I find them reasonably arguable for her intended challenge.

19.Regarding her complaint in Ground (7) over the Board’s finding of her failure to raise her claim when she first arrived in Hong Kong until her subsequent arrest thereby undermining her credibility, it is clear that the Board was statutory entitled to do so under section 37ZD of the Ordinance, and that it was also open to the Adjudicator to refuse to accept her explanation upon hearing her in evidence at her appeal hearing. As such I do not find this ground reasonably arguable either.      

20.As for her remaining Grounds (1) and (2) regarding the Adjudicator’s findings as to the severity of her injuries inflicted by her creditor, and Ground (3) over the Adjudicator’s consideration of the law on BOR 2 risk together with BOR 3 risk and rejected both for the same reasons, I do agree that there appear to be some basis for complaints, or that it may reasonably be arguable that the Adjudicator did err in law as such, but it does not however follow that leave should be granted, not just because of her significant delay with her application, but that they would not in my view ultimately assist or advance her case given the other correct findings of the Director and the Board as to the availability of both state/police protection and reasonable internal relocation to the Applicant upon her return to Vietnam that her application must still fail.

21.Even on the basis of her own case at the highest, there is no question that the Director and the Board were correct to find her dispute with her creditor a private personal monetary matter without any evidence of state or official involvement that state/police protection would be available to the Applicant if needed, and that with their finding that it was a localized risk, again entirely correct in my view, and that in the absence of any evidence that the creditor would have the resources or manpower to expend to search for the Applicant all over the country or the desire to do so over what is the equivalence of HK$200,000, it was clearly correct for the Board to find that it was not unsafe or unreasonable for the Applicant to relocate to other area of Vietnam without any risk of being located that there is no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                 

22.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] 1 HKC 526.        

23.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.

24.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 significant delay, I find no justification to extend time, and accordingly dismiss her application.

Dated the 28th day of October 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