Vu Quoc Hung v. Torture Claims Appeal Board

HCAL 1969/2018

[2021] HKCFI 3893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1969 of 2018

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 24 May 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 48-year-old national of Vietnam who entered Hong Kong illegally on 29 June 2014 and was arrested by police on 9 July 2014. After he was referred to the Immigration Department for investigation, 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. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school he ran a fruit selling business, and in 2005 in order to meet the cash flow problem of his business, the Applicant borrowed a loan from a local money lender repayable within 5 years with monthly interest payments.

3.His business however did not done well, and by 2009 he started to have difficulty making his monthly interest payments on his loan, and after making many threats to him over his defaults, his creditor one day in June 2009 sent some men to his home to beat him with iron pipes that his head suffered serious injuries, and was subsequently taken by his mother to the local hospital for treatments where he was hospitalized for 2 weeks, but for which he was unable to pay for his medical expenses, and so he later fled form the hospital without paying his bills to hide in a neighbor’s place before moving to Mong Cai where he found a job without further encounter with his creditor.    

4.However, one day in June 2014 he was warned by his mother that his creditor may send men to Mong Cai to look for him, and when he later spotted his creditor with his men at a pier, he felt it was no longer safe to remain in Vietnam, and so 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 15 May 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 23 May 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 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 94 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 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 1 June 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 28 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 24 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found significant number of inconsistencies and implausibility in the Applicant’s evidence which undermined its reliability that it was not convinced that he came to Hong Kong because of alleged threat to harm or kill him by his creditor or that he was or is subjected to any risk of harm in his home country, and that in any event such risk of harm from his creditor if true is a localized one, and that with state/police protection available to him upon his return to Vietnam as well as reasonable internal relocation for him to 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 18 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)     that the Board’s findings that there are material facts and information provided by the Applicant that were implausible or unreliable which undermined the credibility of his claim because he did not immediately raise his non-refoulement claim upon his arrival in Hong Kong is not fair because he did not know how to raise his claim as he was not familiar with the new environment;

(2)     that the Board rejected his claim based on his credibility because he was unable to produce any medical evidence without acknowledging the difficult situation of his escape from his home country from the threats of his creditor is both unfair and unreasonable;

(3)     that the Adjudicator misunderstood the interpreter of his explanation as to the calculation of the monthly interest on his loan payable to the creditor that led to the wrong decision of the Board in rejecting the credibility of his claim; and

(4)     that the Board was wrong in rejecting his claim on credibility simply because he failed to seek assistance from the police after being assaulted by his creditor as he had lost consciousness from the attack and hence it was his mother who made the report to the police.  

10.The Applicant was by then however 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.

11.As the last day of the three-month period for him to file his Form 86 fell on 24 August 2018, the Applicant was therefore 3 ½ 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 HKC 393.

12.In the Applicant’s, a delay of 3 ½ weeks must be considered as significant, for which he explained in his affirmation that due to side effects from his serious head injury suffered at the hands of his creditor that he has since become forgetful about things that he forgot to file his Form 86 within the required period.

13.In support of his assertions, the Applicant has exhibited several medical certificates/appointments to his affirmation showing the following information:

(1)   Medical Certificate dated 28 May 2018 issued by Princess Margaret Hospital stating that the Applicant was an in-patient from 25 May 2018 to 28 May 2018 due to unclarified medical problem;

(2)   Patient Discharge Slip dated 6 July 2018 issued by Prince of Wales Hospital of the Applicant’s hospitalization from 3 July 2018 to 6 July 2018 for Epilepsy;

(3)   Appointment Slip for the Applicant to attend the Neuro-diagnostic Unit of the Queen Mary Hospital on 26 October 2018; and

(4)   Instructions issued by Queen Mary Hospital for the Applicant to attend EEG Examination on 26 October 2018.   

14.While none of these documents is a proper medical report on the Applicant’s alleged mental or psychological problem or illness, nor can they verify his alleged head injuries said to have been sustained more than 10 years ago in Vietnam, they do show some mental or psychological issues in the Applicant which necessitated hospitalization for 3 days on two occasions in May and July 2018 which happened to be during the 3-month period for him to file his Form 86, and that an EEG or Electroencephalogram Test on his brain was to be carried out later that year all tend to support the Applicant’s claim of some medical issues with his head that it cannot be excluded any possible effects on his memory, and given the relatively insubstantial delay with his Form 86, I propose to focus on the merits, if any, of his intended application by referring to those proposed grounds of his for his intended challenge.   

15.For his complaint under Ground (1) that it was unfair of the Adjudicator to doubt the credibility of his claim because he did not raise his non-refoulement claim upon arrival in Hong Kong until after his arrest, the fact is that he had been in Hong Kong for some 2 weeks without raising his claim until after his arrest, of which the Adjudicator was entitled to take into account within the provisions of Section 37ZD of the Immigration Ordinance as undermining or damaging the credibility of his claim, as the Adjudicator explained in paragraph 37(a) of the Board’s decision that it was only one of the factors which casted doubt on his intention to pursue his claim. As such I do not find any merits in this complaint of the Applicant.

16.As for Grounds (2) – (4) which all relate to the Applicant’s complaints about the Adjudicator’s assessment of the credibility of his claim, as explained in paragraphs 37 and 38 of the Board’s decision, the Adjudicator did not just rely on any one particular matter in the Applicant’s evidence but a combination of all the inconsistencies and implausibility in his evidence, such as his alleged escape from the hospital in Vietnam without paying his medical bills and yet he was able to produce a discharge certificate issued to him by  the hospital, as properly and carefully analyzed and elaborated by the Adjudicator in the decision, and of which I do not find any serious error of law or facts having been clearly or properly identified by the Applicant under any of his proposed grounds.

17.In any event, even if the Adjudicator did commit any such error in his assessment as complained by the Applicant, they would not assist or advance his case given the Board’s correct findings as to the availability of state/police protection to him in the absence of any official involvement upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that I am simply unable to find any merits either in those grounds of the Applicant or in his intended application.

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, and as already noted, 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.

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 merits in his intended application, I refuse to extend time and accordingly dismiss his leave application.

Dated the 31^st 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