Vu Thi Hue v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1361/2018

[2020] HKCFI 2699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1361 OF 2018

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 submission by the applicant in open court;

Order by Deputy High Court Judge C P Pang:

1.     Extension of time for the application for leave to apply for Judicial Review be refused; and

2.     Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1970, is a national of Vietnam.  According to record of the Immigration Department, she was arrested by the police for using forged ID card and entering Hong Kong unlawfully on 1 March 2014.  She was convicted and sentenced to 15 months’ imprisonment.  In May 2014, she lodged a non-refoulement claim.  She was subsequently released on recognizance after she had served the sentence.  On 7 September 2015, she was arrested again for using copy of false instrument and taking up unlawful employment with a total term of 15 months’ imprisonment passed on her.  She was released on recognizance after she had served the sentence pending the result of her application for non-refoulement claim.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [18-48] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her creditor.  She said that she failed to repay the total debt of 600 million Vietnamese Dong she borrowed in 2007 from a person named Nguyen to expand her trading business of tableware and bricks.  The business declined in mid-2008.  She was then unable to repay the loan and interest.  Since the end of 2008, she had been on a few occasions threatened by her creditor and his followers that she would be killed if she could not repay the debt.  She therefore left her home village and lived in Hai Phong and Hon Gai for 3 years.  During that period, she encountered Nguyen’s people twice and was assaulted on each occasion.  Fearing for her safety, she left Vietnam by fishing boat in December 2012 and sneaked into Hong Kong on 10 December 2012.

The Director’s decision

4.By a notice of decision dated 16 August 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low and found state protection as well as internal relocation as a reasonable option available to the applicant.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended an oral hearing before the Board on 8 December 2017.

6.By a decision dated 16 January 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claim at para [34-48] of its decision.  In a nutshell, the Board found the applicant failed to establish there are substantial grounds for believing that she would be subjected to ill treatment or harm because: it was a private loan dispute [45]; her creditors did not inflict any serious harm on her [37]; the ill-treatment she experienced did not amount to torture [36]; the creditor only pressurized her for repayment without intention to carry out their threat to kill [35].  Further and in any event, internal relocation is a viable option to her [48].

8.Having considered the totality of the evidence before it, the Board concluded that the applicant’s claim failed on all applicable grounds and confirmed the decision of the Director [49].

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 12 July 2018 for leave to apply for judicial review of the decision of the Board.

10.In the Form 86, the applicant did not set out any grounds for relief sought.  In her affirmation in support, she only stated that the Board ignored about the debt she borrowed and the realities in Vietnam.  Its decision is therefore unfair.

11.No request for oral hearing has been made.  The application is therefore considered on the papers.

Discussion

12.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

13.When the applicant pursued her appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on the latter’s decision.

Later application

14.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  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.  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.

15.The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.

16.In this case, the 3-month time limit ended on 16 April 2018 and the application was late by almost 3 months.  The delay was a substantial one.  The applicant did not apply for extension of time or provide any explanation for the delay.  I do not see any satisfactory or valid reason for the undue delay.

Merits of the intended application

17.As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

18.In the present case, the Board did not take issue with the applicant’s claimed primary events.  It only disagreed with her on the assessment of risk flowing from the claimed events.  It rejected the applicant’s appeal/ petition based on its assessment of risk she would face, if refouled.  Further and in any event, the Board found that internal relocation is a viable and reasonable option for her.

19.As mentioned above, assessment of risk of harm and availability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

20.The Form 86 and affirmation of the applicant did not contain any particulars or viable grounds to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. The complaints that the Board ignored her debt and realities in Vietnam, which have been duly considered, are plainly wrong. There is no reasonably arguable basis to challenge the findings of the Board.

21.The Board has taken a most favourable view on credibility of the applicant.  Her delay in making her claim for protection could have been viewed adversely on her credibility.  Her conduct was inconsistent with someone in genuine fear for her life and safety.

22.Even on the applicant’s own account, the past ill treatment was of low intensity and frequency.  It did not reach the level of severity required to constitute torture or CIDTP and is not indicative of real risk of harm caused by her creditor.  She did not report the matter to the local police or authorities.  There cannot be any substantial grounds for believing that she would be at real risk of any type of proscribed harm, if refouled.

23.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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

24.For the reasons given, there is no prospect of success in the applicant’s intended application.  In the absence of good reason for extending the time in the application, I refuse to grant extension of time and dismiss her application for leave to apply for judicial review.

Dated 4 November 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