Tran Ngoc Chi v. Torture Claims Appeal Board

HCAL 911/2018

[2021] HKCFI 2461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 911 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 8 May 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 27-year-old national of Vietnam who entered Hong Kong illegally on 23 August 2014 and was arrested by police on 27 August 2014. After she was referred to the Immigration Department for investigation, 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. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Hong Bang District, Hai Phong City, Vietnam. After leaving school she worked as a hairdresser, and in early 2013 at the age of 18 she and a childhood friend established a restaurant in Hai Phong City by each borrowing a loan from a local money-lender repayable within one year with monthly interest payments.

3.However, by mid-2013 their restaurant business did not fare well, and they started to have difficulty making any interest payments to the money-lender who then sent debt-collectors to their restaurant to threaten them and vandalized their restaurant which was subsequently closed down in August 2013, and to avoid further threats from her creditor, the Applicant therefore departed Vietnam in early 2014 for China, and from there she later sneaked into Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 10 November 2016 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 her 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor or debt-collectors upon her 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”) 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 young 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. 

6.On 23 November 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 16 November 2017 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 29 December 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found the Applicant’s evidence vague, unpersuasive and inconsistent and that she had fabricated her evidence during the hearing that it did not consider her to be a witness of truth and doubted the credibility of her claim, that it did not accept that she had established a restaurant at her age and by borrowing a loan from the money-lender that it did not believe that she departed Vietnam to avoid being harmed or killed by her creditor as alleged or that she would face any real risk of harm from anyone upon her return to Vietnam that her claim for non-refoulement protection failed on all applicable grounds.    

8.On 23 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  that it was unfair for the Adjudicator to criticize and doubt her claim simply because she was unable to remember all the minor details which occurred years ago and selectively disregarded those other facts and information which she was able to corroborate her claim;

(2)  that the Adjudicator was biased against the Applicant for doubting her claim of being able to operate a restaurant at her young age without proper basis and due to her lack of basic knowledge of the real situation in Vietnam;

(3)  that the Adjudicator underestimated the risk of harm to the Applicant upon her return to Vietnam or her fear of being harmed or killed by her creditor which the local police would not help; and

(4)  that the Board was taking too long to arrive at its conclusion and decision that even up to May 2018 when the Applicant still had not received its decision.  

9.The Applicant was however by then 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.

10.As the last day of the three-month period within which the Applicant was to file her Form 86 fell on 29 March 2018, she was therefore almost 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.  

11.In the Applicant’s case, a delay of almost 2 months must be considered as very substantial, for which she explained in her affirmation that she never received the decision in the mail, and that it was only much later when she reported on her recognizance that she was informed by her immigration officer of the outcome of her appeal that she had to instruct her lawyer to write to the Immigration Department on 22 January 2018 for a copy of the Board’s decision when by then she was already out of time with her intended application.

12.In support of her assertions, the Applicant did produce copies of two letters from her then lawyers dated respectively 22 January 2018 and 7 May 2018, with the former to the Immigration Department requesting for a copy of the Board’s decision which the Applicant had never received in the mail. While it did not disclose her then address in the letter, I am prepared to accept that she had until then not received the decision in the mail, but surely thereafter she would have received it after the Immigration Department had received her lawyer’s letter, as evidenced by the second letter of 7 May 2018 which requested for another copy of the decision as the Applicant was as stated in the letter for unknown reason unable to find the decision which the Department had earlier forwarded to her.

13.In the circumstances, while the Applicant might as a result have received the Board’s decision somewhat late in February 2018 after her lawyer’s first letter, it would still have been within the three-month period for her to file her Form 86 even if she was indeed unable to do so promptly as required by the rule, yet she ended up only filing her Form 86 almost 2 months later on 23 May 2018, and for which I am not satisfied that she has provided any good reason for such delay.       

14.As for the merits, if, any, of her intended application, I refer to the Applicant’s proposed grounds as stated above, of which Ground (4) can be rejected right away as the Board’s decision dated 29 December 2017 must have been received by her shortly after her lawyer’s first letter to the Immigration Department and well before she filed her Form 86, as it was clearly referred to in her Form as the decision that she wishes to challenge, and which she did also refer to in her supporting affirmation in her other complaints regarding the decision, hence her complaint of never receiving the Board’s decision is both factually incorrect and not arguable at all for her intended challenge.

15.Aa for her complaints under Grounds (1) and (2) that it was unfair of the Adjudicator to doubt her claim of having run a restaurant in Vietnam at her young age and when she was unable to remember minor details of the operation as it occurred years ago, it would be relevant to first refer to the Adjudicator’s findings on the Applicant’s evidence as to the establishment and operation of the restaurant at paragraph 38 of the decision:

“Firstly, I consider that the Appellant’s evidence during the hearing as to her employment as a hairdresser and subsequently as the co-owner of a restaurant is not credible. The Appellant’s evidence during the hearing as to employment as a hairdresser was somewhat inconsistent with her written evidence. Her evidence as to why and how she established a restaurant, at the age of 18 or 19 years, with no previous experience, was vague and unpersuasive and indicative of the fact that she was not speaking from her personal experience, and was instead fabricating evidence during the hearing. Although I accept that eth Appellant has not claimed to have established a large restaurant, I nevertheless consider that had she established a restaurant business at any time that she would have been able to speak more persuasively about issues such as the type of equipment required, the fit-out of the restaurant and advertising for the restaurant. I also consider that any restaurant which was established in 2013 would have given some consideration to online advertising. I am not satisfied that the Appellant’s evidence indicates that she and her business colleague had given any consideration to such issues. I also consider that it is not credible that the Appellant would have no documentation in relation to the establishment of a restaurant and consider it highly unlikely that the Appellant at any time established a restaurant in Vietnam.”

16.The Adjudicator had had the benefit of hearing the Applicant’s evidence at the appeal hearing on 16 November 2017 which was only some 4 years after the Applicant had allegedly established her restaurant and should therefore still be relatively fresh in her memory, and given that the burden of establishing her claim was in the Applicant, and in the absence of any other evidence including documentary from her to corroborate her bare assertions regarding the establishment and operation of her restaurant which was the cause for the loan and the core of her claim, it was in my view entirely appropriate for the Adjudicator to raise those issues as noted above and to draw attention to the matters that obviously required clarification and elaboration from the Applicant given her stated young age at the time when she decided to go into a business in which she had no prior experience, and which was to take place not in some remote village but in a major industrial city as Hai Phong City, and in the absence of any satisfactory explanation or clarification from the Applicant to those issues, the Adjudicator was in my view entitled to doubt the credibility of her claim. As such I do not find these complaints of the Applicant reasonably arguable for her intended challenge.

17.As for her complaint under Ground (3) that the Adjudicator had underestimated the risk of harm from her creditor upon her return to Vietnam, given the Adjudicator’s correct finding as to the credibility of the Applicant’s claim of having borrowed any loan for establishing any restaurant, it seems academic to me to consider whether the Adjudicator had indeed underestimated such risk, but nevertheless it is clear that the Adjudicator did take into proper consideration from relevant COI of such risk from loan sharks and debt collectors in Vietnam (see [35] – [37] of decision). In the premises and for these reasons, I do not find this complaint of the Applicant reasonably arguable for her intended challenge either.   

18.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.

19.In the Applicant’s case, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20.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.

21.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 substantial delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 24^th day of August 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