Do Thi Thinh v. Torture Claims Appeal Board

HCAL 2454/2019

HCAL 712/2020

(Consolidated)

[2021] HKCFI 1312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2454 OF 2019

BETWEEN

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 712 OF 2020

BETWEEN

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 the Applicant in HCAL 2454/2019 and HCAL 712/2020 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 24 November 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 53-year-old national of Vietnam who last entered Hong Kong illegally on 20 March 2015 and surrendered to the Immigration Department on 28 July 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 loans. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Haiphong, Vietnam. After leaving school she married her husband and raised a family of 2 sons in her home village.

3.In June 2003 she travelled to Hong Kong as a visitor but was subsequently arrested for smuggling for which she was convicted and sentenced to prison for 2 months before being repatriated back to Vietnam in August 2003.

4.In 2008 her husband passed away and she therefore worked as a street vendor to support her sons, and due to the meagre income, she departed Vietnam again in May 2012 for China, and from there she later sneaked into Hong Kong to look for work, but was arrested a few days later and was repatriated to Vietnam in January 2013.

5.Upon returning to Vietnam, the Applicant in 2014 and 2015 borrowed two loans from a local money-lender to pay for her sons’ government traineeships, but when she had difficulty making her their repayments, and when her creditor started to send men to threaten her, the Applicant departed Vietnam on 16 March 2015 for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 28 April 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”).

7.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 her followers upon her return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that her problem with her 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”) 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.

8.By a Notice of Further Decision dated 10 March 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”).

9.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 11 May 2016, but for which she failed to attend the scheduled hearing on 20 September 2017 without any explanation, and the Board proceeded to deal with her appeal in her absence and on paper. On 24 November 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board accepted the Applicant’s claim of her loans problem with her creditor and that she may have been threatened as a result, but found that it was a private monetary dispute without any official involvement 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 in some large cities where there would not be any risk of her being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.  

11.On 26 August 2019 the Applicant filed what turned out to be her first Form 86 in HCAL 2454/2019 for leave to apply for judicial review of the Board’s decision, 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 her life is not safe in Vietnam without putting forward any proper grounds for her intended challenge.

12.However, before her application could be dealt with by the court, the Applicant on 1 January 2020 wrote to withdraw her application because her parents in Vietnam were sick and that she wanted to return to Vietnam to take care of them, of which Deputy High Court Judge K W Lung directed that a hearing be fixed for her request, but somehow due to the Covid-19 pandemic and the subsequent general adjournment of court proceedings, the Applicant’s request was never dealt with at that time.

13.Meanwhile on 20 April 2020 the Applicant filed another Form 86 in HCAL 712/2020 for leave to apply for judicial review of the same decision of the Board, and again no ground for seeking relief was given in her Form or in her supporting affirmation.

14.Eventually, both applications came before me on 6 October 2020 when the Applicant appeared in person and explained that after she made her request to withdraw her first Form 86 in January 2020, she did not leave Hong Kong due to the pandemic, but believing that her first application had since been withdrawn at her request by the court, but as it was still her intention to proceed with her challenge of the Board’s decision, she therefore filed a second Form 86 in April 2020. In the circumstances and with her consent, I directed that both applications be consolidated for hearing, and proceeded to deal with them together.

15.It is however clear that on 26 August 2019 when she filed her first Form 86, and never mind her later second Form 86, the Applicant was by then way out of time with her 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.

16.As the last day of the three-month period for her to file her Form 86 for judicial review of the Board’s decision fell on 24 February 2018, the Applicant was therefore late by more than 18 months 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.

17.In the Applicant’s case, a delay of more than 18 months must be considered as very substantial and excessive, for which she explained at the hearing that she was then being detained at the Tai Lam Correctional Institution but without providing any further details. Even accepting that it was indeed the case, and I note that it was so stated in her Form 86, but any inevitable restrictions or inconvenience so caused by her detention as a result cannot justify her such serious delay. As such I am not satisfied that she has shown any good or valid reason for her serious procedural breach.      

18.As for the merits, if any, of her intended applications, as noted above, the Applicant did not put forward any grounds for either of her applications, nor was she able to do so at the hearing other than just repeating her claim that her life would still be in danger in Vietnam due to threats of her creditor, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.         

19.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.

20.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.     

21.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.

22.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 serious delay, I refuse to extend time, and accordingly dismiss both of her leave applications.

Dated the 7^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