Nguyen Van Khanh v. Torture Claims Appeal Board

HCAL 1354/2021

[2021] HKCFI 3906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1354 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 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 April 2021 refused; and

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

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Vietnam who entered Hong Kong illegally in November 2019 and was arrested by police on 11 December 2019 for theft for which he was subsequently convicted and sentenced to prison for 15 months.  After his discharge from prison and was transferred 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 over his outstanding debts.  

2.The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school he worked as a farmer, married his wife and raised a family with 4 children in his home district.

3.In April 2019 he decided to start a pig farm by borrowing a loan from a local loan shark with interests on the loan payable every month until its discharge, but in July 2019 his pig farm was destroyed by a plague, and when he was unable to repay his loan, he was threatened by the loan shark who then sent his men to damage his home that the Applicant fled to Lang Son to hide in a friend’s place.

4.However, one day in October 2019 he was located by followers of the loan shark who beat him badly with a warning that next time he would be killed if he still failed to repay his loan, and as a result the Applicant felt it was no longer safe to remain in Vietnam, and so in November 2019 he departed for China, and from there he later sneaked into Hong Kong, and after 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 20 August 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 15 September 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”).

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 his men 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 cause any serious harm to the Applicant other than to put pressure on him to repay his debts, 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 98 million people spread across a vast territory of more than 330,000 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 6 October 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, which was late and outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance but was accepted for late filing by the Board, and for his appeal the Applicant however failed to attend the scheduled oral hearing on 15 March 2021 before the Board, and upon his failure to provide any explanation for his non-attendance thereafter, the Board proceeded to deal with his appeal in his absence and on the papers. On 27 April 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found no reliable evidence from the Applicant to corroborate his bare assertions of fear of harm from his creditor over his outstanding debts and doubted the credibility of his claim, that it was in any event a private monetary dispute between him and his creditor 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 areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 28 September 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 half-page affirmation of the same date he wrote in Vietnamese without any translation, and as he also failed to attend the hearing of his application without any explanation so as to clarify what he had stated in his affirmation, I am unable to find any proper ground for his intended challenge.

10.By then the Applicant was also 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 day 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 27 July 2021, the Applicant was therefore 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: AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of 2 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or supporting affirmation, and that he also failed to attend the hearing of his application without explanation. As such 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 find 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 merits in his intended application either. 

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 decisions 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 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 30^th day of December 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