Hoang Khac Viet v. Torture Claims Appeal Board

HCAL 909/2021

[2021] HKCFI 2793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 909 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.  the application for extension of time for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 13 March 2018 refused; and

2.  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 6 November 2015 and surrendered to the Immigration Department on 10 November 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 over his unpaid debts.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in An Lao District, Hai Phong City, Vietnam.  After leaving school he married his wife and moved to reside in her home district in Cam Pha Town, Quang Ninh Province where he worked as a baker and subsequently ran his own baker shop.

3.In 2015 he borrowed a loan from a local money-lender for expanding his bakery business, with interest on his loan payable per month.

4.However, his bakery business did not fare well, and after about 6 months he started to have difficulty making his monthly interest payments, and as a result his creditor and followers came to his place to threaten him, and after being beaten by them on several occasions and his shop was also vandalized, the Applicant became fearful for his life, and so on 27 October 2015 he departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 29 March 2017 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”).

6.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 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 there is no evidence of any real intention of his creditor to seriously harm him other than to put pressure on him to repay his loan, that in any event 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 310,000 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 creditor to locate him.

7.On 11 April 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 14 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 13 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim, but found in any event that it was a private monetary dispute between them without 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 area 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.  

9.On 24 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, and in his supporting affirmation of the same date he just repeated his claim of fear of being harmed or killed by his creditor over his unpaid debts if refouled to his home country but without putting forth any proper ground for his intended challenge.

10.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.

11.As the last day of the three-month period for him to file his Form 86 fell on 13 June 2018, 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] HKCA 393.

12.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 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 serious delay.

13.As for the merits, if any, of his 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 reasonably arguable basis for or merits in his intended application.

14.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.

15.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 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.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.

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

Dated the 16^th day of September 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