Dinh Van Tau v. Torture Claims Appeal Board

HCAL 847/2021

[2021] HKCFI 1974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 847 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 28 January 2021 refused; and

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

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Vietnam who entered Hong Kong illegally on 15 December 2019 and was arrested by police on 24 February 2020 for possession of dangerous drugs for which he was subsequently convicted and sentenced to prison. After his discharge from prison and was referred to the Immigration Department for deportation, 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,

2.The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school he worked as a farmer in his home village, and in September 2019 he started his own chicken breeding business by borrowing a loan from a local money-lender repayable within 5 months with monthly interest payments.

3.However, towards end of October 2019 his chickens were wiped out by a plague that he had to close down his business, and as a result he was unable to repay his loan, for which his creditor had sent his men to threaten the Applicant, and after being beaten by those men on several occasions, the Applicant became fearful for his life, and so on 11 December 2019 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 May 2020 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

4.By a Notice of Decision dated 31 July 2020 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”).

5.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 followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between them 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 99 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.

6.On 31 August 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which the Board did not hold any oral hearing and proceeded to deal with his appeal in his absence and on paper. On 28 January 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s claim of risk of harm from his creditor over their loan dispute, but found in the absence of any evidence of official involvement in what was essentially a private monetary dispute between them that state/police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to move safely 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.   

8.On 8 June 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 or in his supporting affirmation of the same date in which he merely stated that he disagrees with the decision as his life would be in danger in his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

9.The Applicant was however by then 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.

10.As the last day of the three-month period for him to file his Form 86 fell on 28 April 2021, the Applicant was therefore 6 weeks 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.

11.In the Applicant’s case, a delay of 6 weeks must be considered as very substantial or excessive, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his substantial delay.

12.As for the merits, if any, of the intended application, as noted above the Applicant has also failed to put forth 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 merits in his intended application either.

13.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.

14.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 his 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.  

15.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.

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

Dated the 6^th day of July 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