Vi Trung Tu v. Torture Claims Appeal Board

HCAL 1522/2018

[2021] HKCFI 1413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1522 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 February 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Vietnam who entered Hong Kong illegally on 29 December 2013 and was arrested by police on 2 January 2014. After he was referred to the Immigration Department for investigation, 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 and that he would also be sued by the bank over the default of his loan and/or by his customers for failing to deliver their goods after he had suffered a traffic accident. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Nghedo, Ha Ninh Commune, Ha Trung District, Thanh Hoa Province, Vietnam. After leaving school he worked in construction sites, got married and raised a family of two children.

3.In 2010 he mortgaged his home to a bank for a loan for purchasing a vehicle to start a transportation business, but in January 2013 while driving his vehicle for delivery of goods to his customers, he had a traffic accident when he crashed his vehicle and sustained serious injuries that he was hospitalized for two months, for which his family borrowed a loan from a local money-lender to pay for his medical expenses.

4.Upon discharge from the hospital, and without his vehicle which was a total loss without insurance, the Applicant was unable to work to repay the bank or the money-lender, and as a result his house was possessed by the bank which also sued him for the balance of his loan, and that his customers also sued him for failing to deliver their goods, while the money-lender had sent men to threaten and beat him up over his failure to repay his loan.

5.To avoid such threats and law suits, the Applicant fled to hide in his uncle’s place in Hau Loc District, and from there he eventually departed Vietnam on 27 December 2013 for China and then for Hong Kong, and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 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 8 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be exposed to any significant risk of being harmed or killed by the money-lender or put in prison by his bank or customers upon his return to Vietnam as the latter would be civil actions without any risk of any criminal implications under any of the applicable grounds, while the former 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 his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditors or customers to locate him.

8.By a Notice of Further Decision dated 28 February 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”).

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 20 September 2016, and for which he attended an oral hearing on 6 December 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 27 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board accepted the Applicant’s evidence of owing money to the bank and money-lender as well as his former customers but found all were private personal monetary or civil disputes with no criminal implications or any evidence that he would suffer any of the proscribed harm under any of the applicable grounds, and that in the absence of any official involvement that state/police protection would be available to him upon his return to Vietnam that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 1 August 2018 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 attached a copy of the decision without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.By then the Applicant was also 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.

13.As the last day of the three-month period for him to file his Form 86 fell on 27 May 2018, the Applicant was therefore more than 2 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: see AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of more than 2 months must be considered as significant or substantial, for which he did not provide 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 do not see any good or valid reason for his delay.

15.As for the merits, if any, of his intended application, as noted above the Applicant did not put forward any proper ground for his intended challenge, 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 reasonably arguable basis or merits in his intended application.    

16.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.

17.Furthermore, the fact is that it has been established by the Director in his 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 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.     

18.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.

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

Dated the 18^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