Duong Thi Be v. Torture Claims Appeal Board

HCAL 1101/2018

[2021] HKCFI 1178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1101 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 10 January 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 49-year-old national of Vietnam who entered Hong Kong illegally on 13 April 2015 and surrendered to the Immigration Department on 27 April 2015 when 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, and when her son later also sneaked into Hong Kong on 26 December 2015, she raised the same non-refoulement claim for him on the same basis. They were subsequently released on recognizance pending the joint determination of their claim.

2.The Applicant was born and raised in Cam Pha City, Quang Ninh Province, Vietnam. After leaving school she worked in various jobs, formed a relationship with a man and with whom she gave birth to her son in 1997.

3.In 2012 she started a business trading in building materials by borrowing a loan from a local money lender with monthly interest payable on the loan.

4.Initially with her business doing well, the Applicant was able to make her loan interest payments without difficulty, but in 2014 her business started to turn bad, and by May 2014 she was unable to make any interest payments to her creditor who began send his men to make threats against her over her default with her loan, and so the Applicant fled to another town to avoid her creditor, and as she feared that she would be located by her creditor, she therefore departed Vietnam on 10 April 2015 for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection.

5.Later in December 2015 when she heard that her creditor had also made threats against her son, she then arranged for her son to also sneak into Hong Kong via China, and raised a similar claim for him on the same basis, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 March 2017 for both of them, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 21 April 2017 the Director of Immigration (“Director”) rejected the claim of the Applicant and her 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 her son and assessed the level of risk of harm from her creditor and his men upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that their problem with the creditor was a private monetary dispute without any official involvement that state or police protection would be available to the Applicant and her son 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 with her son to other part of Vietnam away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate them.

8.On 4 May 2017 the Applicant lodged an appeal for herself and her son to the Torture Claims Appeal Board (“Board”) against the decision of the Director, of which the Board did not find it necessary to conduct any oral hearing, and proceeded to deal with their appeal in their absence and on paper. On 10 January 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board did not take any issue with the credibility of the Applicant and accepted her stated claim of threats from her creditor over her loan, but found in the absence of any evidence of any state or official involvement that state/police protection would be available to the Applicant and her son upon their return to Vietnam as well as reasonable internal relocation for them to move safely to other area without any risk of being located by the creditor that their claim for non-refoulement protection failed on all applicable grounds.    

10.On 14 June 2018 the Applicant filed a Form 86 for herself only for leave to apply for judicial review of the decision of the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that she would face a real risk of being killed by her creditor in Vietnam but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.By then the Applicant was however out of time with her 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 her to file her Form 86 fell on 10 April 2018, 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: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of more than 2 months must be considered as significant, for which she did not provide any explanation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I do not find any good reason for her delay.

14.As regard the merits, if any, of her intended application, as noted above the Applicant has failed to put forward any proper grounds for her intended challenge. As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly or properly identified by the Applicant, I do not find any reasonably arguable basis for her 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 both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her 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 her delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 27^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