Nguyen Quoc Cuong v. Torture Claims Appeal Board

HCAL 631/2021

[2021] HKCFI 3089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 631 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 6 September 2019 refused; and

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

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Vietnam who entered Hong Kong illegally on 3 February 2018 and was arrested by police on 5 February 2018 for the offence of theft. While being released on bail pending trial of his charge, he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by the police and Vietnamese authorities for taking part in a protest against government corruptions.  

2.The Applicant was born and raised in Hai Phong, Vietnam. After leaving school he worked in construction and transportation sectors in his home district.

3.In 2014 he participated in a mass protest in his home district against government corruptions which took place peacefully without incidents, but several months later he was told that some of those people who took part in that protest had been arrested by police, and when he heard that the police might be looking for him, he departed Vietnam for Malaysia where he stayed in a friend’s place for several months before moving to Cambodia until 2017 when he returned to his home in Vietnam, but as he still feared for his safety, he moved to Ho Chi Minh City where he stayed for 10 months and worked as a welder, but later when he heard that the police were still looking for him everywhere, he therefore departed Vietnam again in early 2018 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 4 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 25 May 2018 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the police or authorities upon his return to Vietnam as low due to the absence of any past ill-treatment from them, that there is no reliable evidence other than hearsays and his own speculation of any threats from the police or authorities against him over his participation of a peaceful protest which occurred years ago, that in the absence of 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 adult with working experience to move to other part of away from his home district in large cities such as Ho Chi Ming City where he had stayed before without incidents and where it would be difficult if not impossible for him to be located.

6.On 6 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision with legal representation from DLS, but for which he failed to attend the scheduled oral hearing before the Board without explanation, and the Board proceeded to deal with his appeal in his absence upon hearing submissions form his lawyer from DLS. On 6 September 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found no reliable evidence from the materials and information provided by him previously to the Director and available before the Board as well as from his lawyer from DLS at his appeal hearing that the Applicant is being wanted or targeted by the Vietnamese police or authorities over his participation in a peaceful protest that occurred years ago, that reliable COI show that any such fear of persecution from the authorities upon his return to Vietnam is unfounded, and that it did not find any real chance of him being harmed by anyone if refouled to Vietnam that his claim for non-refoulement protection failed on all applicable grounds.   

8.On 5 May 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 merely stated that he does not agree with the decision as his life is still in danger in his home country that he cannot go back but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

9.By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A 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 3-month period for him to file his Form 86 fell on 6 December 2019, the Applicant was therefore almost 17 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: AW v Director of Immigration[2016] 2 HKC 393.

11.In the Applicant’s case, a delay of almost 17 months must be considered as extremely substantial and 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 last reported address without being returned through undelivered post, I do not see any good reason for his serious delay. 

12.As for the merits, if any, of his intended application, as noted above the Applicant has 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 Board rejected his claim essentially on its adverse finding of any reliable evidence that he is being wanted or targeted by the Vietnamese authorities or of any risk of harm from them for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 96 of its decision, and that in the absence of any explanation from him for his failure to attend his oral hearing and given the fact that he was then legally represented that the Board was also entitled to proceed to deal with his appeal in his absence, and in the absence of any error of law 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 to challenge the finding of the Board.        

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

Dated the 22^nd day of October 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