Nguyen Khac Thieu v. Torture Claims Appeal Board

HCAL 1002/2018

[2021] HKCFI 940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1002 of 2018

BETWEEN

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 27 October 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 28-year-old national of Vietnam who last entered Hong Kong illegally on 9 March 2016 and surrendered to the Immigration Department the following day when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Duc Hau Hamlet, Do Son District, Haiphong City, Vietnam. After leaving school he assisted in his parents’ farming in their home village.

3.In 2013 his mother suffered from ill-health and was unable to work, and as she required medical treatments which thus created a heavy financial burden on the family, and to ease their financial difficulties, the Applicant therefore borrowed a loan from a local triad with interest payments every month until repayment of the loan.

4.The Applicant was able to make his monthly interest payments until July 2014 when he encountered difficulty to continue to do so, and when his creditor started to make threats against him, and after having been beaten by men sent by his creditor on several occasions when they cut off the tip of one of his fingers on the last occasion, the Applicant became fearful for his life, and fled to a neighbouring town, and in October 2014 he departed Vietnam for China, and from there he sneaked into Hong Kong on 11 October 2014 when he was arrested by police, and after admitting that he came to Hong Kong looking for jobs, he was deported on 2 December 2014 and returned to Vietnam.       

5.Upon returning to Vietnam, the Applicant did not return to his home village, but as he heard that his creditor was still looking for him everywhere, he therefore departed again in February 2016 for China, and from there he made his way to Hong Kong on 9 March 2016 when he subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 23 December 2016 the Director of Immigration (“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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found inconsistencies and discrepancies in his account of events in Vietnam and doubted his claim of fear of harm form any creditor over any loan that caused him to leave Vietnam for Hong Kong, and that in any event even if there were indeed threats from his creditor over any loan that it was assessed as low upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that his problem with them was a private monetary dispute 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 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 young man with working experience to move to other part of Vietnam away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the decision of the Director, but failed to attend the scheduled oral hearing on 10 October 2017 before the Board, nor did he subsequently respond to the Board’s written request to provide his explanation for his non-attendance, and so the Board proceeded to deal with his appeal in his absence and on paper. On 27 October 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found numerous issues over the Applicant’s alleged account of events in Vietnam that it was concerned about the credibility of his claim, including the many questions set out in its decision which it would want him to explain or clarify during his appeal hearing but which he however failed to attend without any explanation and that in the absence of his answers to these questions that it was not satisfied that the Applicant had established his claim, and that in any event with state protection and internal relocation available upon his return to Vietnam that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 4 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy of the Board’s decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.By then Applicant was however out of time with his intended 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-month period for him to file his Form 86 fell on 27 January 2018, the Applicant was therefore more than 4 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.

13.In the Applicant’s case, a delay of more than 4 months must be considered as very substantial or excessive, for which he did not provide any explanation, and as the record shows that the decision was sent on the same day to his last reported address and without being returned through undelivered mail, I am unable to find any good reason for his serious delay.

14.As for the merits, if any, of the intended application, as noted above the Applicant has failed to put forward any proper ground for his challenge, and given the unchallenged finding that his claimed risk if true is a localized one which would be negated by reasonable internal relocation within his home country, I do not find any reasonably arguable basis for his intended challenge.

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 the Director in his 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, 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.     

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 for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 9^th day of April 2021.

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