Nguyen Tuan Anh v. Torture Claims Appeal Board

HCAL 2343/2020

[2022] HKCFI 951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2343 of 2020

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 21 December 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Vietnam who arrived in Hong Kong on 7 January 2016 together with his wife and son as visitors with permission to remain up to 14 January 2016 when they did not depart and instead overstayed, and on 18 January 2016 they surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by the Applicant’s creditor over his outstanding debts. They were subsequently released on recognizance pending the determination of their claims.

2.The Applicant was born and raised in Haiphong, Vietnam, and in 1991 he moved to Ho Chi Minh City where he subsequently worked in various jobs after leaving school, later married his wife and raised a family with 2 children.

3.In 2011 he started to run his own business trading in building materials, and in 2012 he expanded his business and opened a restaurant by borrowing a loan from a local money lender repayable within one year and with monthly interest payments.

4.Unfortunately, by the end of 2012 his businesses failed and had to be closed down, and when he was unable to repay his loan, the money lender sent his men to threaten the Applicant and his family, and after being assaulted by those men on 2 occasions, the Applicant and his family fled from their home to hide in a friend’s place for the next few months without incidents.

5.However, in early January 2016 when he heard that his creditor had sent men to look for him everywhere, the Applicant decided it was no longer safe to remain in Vietnam, and so on 7 January 2016 he departed Vietnam with his wife and son for Hong Kong where they subsequently overstayed and raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form (“NCF”) on 30 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 15 November 2016 the Director of Immigration (“Director”) rejected the claim of the Applicant and his family on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

7.In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and his family and assessed the level of risk of harm from his creditor and followers upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm or kill the Applicant or his family other than to put pressure on him to repay his debts, that in any event it was a private monetary dispute between the Applicant and his creditor without any official involvement that state or police protection would be available to the Applicant and his family 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 with his family to other part of Vietnam away from his home district in large cities such as Hanoi where it would be difficult if not impossible for his creditor to locate him or his family.

8.After the Director’s decision, the wife and son of the Applicant subsequently indicated to the Immigration Department that they no longer wished to pursue their non-refoulement claim, and were therefore repatriated to Vietnam, leaving only the Applicant in Hong Kong to proceed with his claim to the second-tier process before the Torture Claims Appeal Board (“Board”) by lodging his appeal on 13 April 2017 against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 4 September 2018 before the Board, nor did he subsequently provide any explanation for his absence or request any further oral hearing. In the circumstances the Board proceeded to deal with his appeal in his absence and on paper, and on 21 December 2018 it dismissed his appeal and also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his creditor over any outstanding debts that caused him to flee from Vietnam for Hong Kong, and in any event even if is true that he did flee his home country due to genuine fear of harm from his creditor 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 move safely to other area with his family away from his home district without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.   

10.On 30 November 2020 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 stated that he does not agree with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.By then the Applicant was also seriously out of time with his application, as Order 53 Rule 4(1) of the Rules of 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 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.

12.As the last day of the 3-month period for him to file his Form 86 fell on 21 March 2019, the Applicant was therefore more than 20 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.

13.In the Applicant’s case, a delay of more than 20 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or supporting affirmation, and as the record shows that the decision was sent on the same day to the Applicant at his last reported address without being returned through undelivered post, I do not see any reason for his such serious delay.     

14.As for the merits, if any, of the intended application, as noted above that the Applicant has also failed to put forward 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.

15.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.

16.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.                

17.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.

18.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 1^st day of April 2022.

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