Nguyen Duy Sang v. Torture Claims Appeal Board

HCAL 111/2021

[2021] HKCFI 1243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 111 of 2021

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 8 September 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Vietnam who entered Hong Kong illegally on 10 August 2015 and surrendered to the Immigration Department on 12 August 2015 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 Thuy Nguyen, Hai Phong, Vietnam. After leaving school he worked in various jobs in his home district, got married and raised a family of 2 children.

3.In 2012 he borrowed a bank loan for purchasing a goods vehicle to start his own delivery business, but one day in August 2013 he crashed his goods vehicle in a traffic accident, and in order to repair his goods vehicle so as to maintain his business, he borrowed another loan from a local money-lender with monthly interest payments until discharge of the loan.

4.However, he soon found the burden of having 2 loans too heavy to manage when his business did not fare well, and by early 2014 he was unable to make any payment for his second loan, and when his creditor started to send his men to threaten him, and after several occasions when he was beaten by those men, he became fearful for his safety, and so he fled from his home to take shelter in a friend’s place in Ho Chi Minh City, and on 9 August 2015 he departed Vietnam for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 May 2016 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 1 September 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and his followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his creditor 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”) shows 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 parts 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.

7.By a Notice of Further Decision dated 1 March 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his 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”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 19 September 2016, and for which he attended an oral hearing on 12 July 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 8 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s account of threats from his creditor that it doubted the credibility of his claim, but found in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.   

10.On 1 February 2021 the Applicant filed his Form 86 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 stated that he does not agree with the decision, and repeated his claim that he cannot go back to his home country as his life would still be in danger there but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

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-month period for him to file his Form 86 fell on 8 December 2017, the Applicant was therefore more than 3 years 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 HKCA 393.

13.In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and excessive, for which he has not provided any explanation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to find any good reason or justification for his such serious delay.

14.As for the merits, if any, of his intended application, as noted above the Applicant did not put forward any proper ground in his affirmation for his intended challenge. As such and in the absence of any error of law or irrationality 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 merits in his intended application either.     

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, while I do have some reservation with the way the Adjudicator casted doubt on the credibility of the Applicant’s claimed threats from his creditor to him and his family over his outstanding debt in the absence of any proper evidential basis and appeared to have just relied on his own perception of what a money-lender or loan shark would have done in similar circumstances, the fact is that it has been established, correctly in my judgment, by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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 for his such serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 4^th day of May 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