Nguyen Bui Son and Others v. Torture Claims Appeal Board

HCAL 352/2019

[2022] HKCFI 1166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 352 of 2019

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 2 December 2016 refused; and

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

Observations for the Applicants:

1.The 1^st and 2^nd Applicants are a married couple with the 3^rd Applicant being their then minor child. They all are nationals of Vietnam who arrived in Hong Kong on 12 October 2013 as visitors with permission to remain up to 25 October 2013 when they did not depart and instead overstayed, and on 28 October 2013 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 Vietnamese authorities due to the couple’s previous protest against the government over some land compensation dispute and for unlawfully damaging a national flag during the protest. They were subsequently released on recognizance pending the determination of their claim.

2.The 1^st Applicant(“A1”) was born and raised in Duong Quan Commune, Thuy Nguyen District, Hai Phong City, Vietnam. After leaving school he married the 2^nd Applicant (“A2”), raised a family with 2 children, a daughter now married in Vietnam, and a son, the 3^rd Applicant (“A3”) born in 2001, and made their living by farming on the farmland allocated to them by the local authority of their commune.

3.In 2010 the government planned to resume the land of their commune and offered to pay cash compensation to the affected villagers, but as there were disputes over the quantum of the compensation and the way of their calculations between the villagers and the government, negotiations were dragged on to 2013 when some of the villagers including A1 and A2 lost their patience, and on 7 October 2013 they marched in a protest to the local government office to demand to meet the officials involved, and when they were driven away by the police, a violent shuffle ensued during which A1 and A2 grabbed one of the national flags in the building and tore it apart before they fled from the scene.

4.To avoid possible arrest by police, A1 and A2 then fled to Hanoi to take shelter in a friend’s place, and after arranging for A3 to join them there, they together departed Vietnam on 12 October 2013 for Hong Kong where they subsequently overstayed and raised their non-refoulement claim for protection, for which they completed their Non-refoulement Claim Forms (“NCF”) on 5 September 2014 and 23 September 2014, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 27 February 2015 the Director of Immigration (“Director”) rejected the Applicants’ claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 Applicants’ claim and assessed the level of risk of harm from the Vietnamese authorities upon their return to Vietnam as low due to the absence of any past ill-treatment from them, that there is no evidence from the Applicants that they are being pursued by the Vietnamese police or authorities or that they had been targeted by the authorities over their protest or the damage of a national flag other than their own suspicions or speculations, nor is there any evidence of any official involvement in their land dispute with the local commune that state or police protection would be available to the Applicants 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 spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with his family to other part of Vietnam away from their home district in large cities such as Hanoi where it would be difficult if not impossible for them to be located.

7.On 16 March 2015 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 12 February 2016 before the Board during which A1 on their behalf gave oral evidence and answered questions raised of their claim by the Adjudicator for the Board. On 2 December 2016 their appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found no evidence of any pursuit or arrest or prosecution of any of the Applicants before or after their departure of Vietnam in particular as to A3 who was then a minor when he left the country and that even on the basis of their own case that he had not done anything to warrant any attention of the police or authorities, nor is there any evidence that any of them would be at risk of being tortured or ill-treated if arrested by the police or that they would not be entitled to due process or legal representation if prosecuted for any crime that they might have committed prior to their departure on the basis of the relevant COI available before the Board, and that in any event if indeed A1 and A2 fled the country to avoid prosecution for damaging the national flag then they would be fugitives of the law and not entitled to non-refoulement protection that their claims failed on all the applicable grounds.      

9.Meanwhile on 16 January 2017 the Director on his own initiative invited the Applicants to submit any additional facts which they may consider relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”), and upon receiving and considering additional information from them, the Director by a Notice of Further Decision dated 7 February 2018 also rejected the Applicants’ BOR 2 Claim upon finding that they had submitted essentially the same information as before for their claim, that on the basis of such information that their claim would not engage the BOR 2 ground at all, and that they had failed to establish a personal and real risk of their absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon their return to Vietnam.

10.The Applicants did not lodge any appeal to the Board against this further decision of the Director, but instead on 8 February 2019 they filed a Form 86 for leave to apply for judicial review of the earlier decision of the Board of 2 December 2016 which dismissed their appeal against the first decision of the Director, but for which no ground for seeking relief was given in their Form, and in their supporting affirmations of the same date they just repeated their claim of their fear of harm from the Vietnamese authorities over their protest and damage of the national flag as before but without putting forward any proper ground for their intended challenge, nor did they request any oral hearing for their application.

11.By then the Applicants were also seriously out of time with their 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 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.

12.As the last day of the three-month period for them to file their Form 86 fell on 2 March 2017, the Applicants were therefore almost 2 years late with their application, and in considering whether to extend time, the court shall have regarded 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 Applicants’ case, a delay of almost 2 years must be considered as extremely substantial and inordinate, for which they did not provide any explanation in their Form or affirmations, and as the record shows that the decision was sent on the same day to their last reported address without being returned through undelivered post, I am unable to see any good reason for their serious delay.

14.As for the merits, if any, of their intended application, as noted above the Applicants have not put forward any proper ground for their intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any merits in their 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 Applicants’ case, the Board rejected their claim essentially on its finding of absence of any factual or legal basis in support of their claim for the thorough and detailed analysis and reasoning set out in its decision and with the benefit of hearing A1 in his oral evidence and his answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.                   

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 Applicants’ claim. I am of course mindful of the fact that A3, who was born on 11 September 2001, was then a minor in his mid-teens at the time of the appeal before the Board for which he was not legally represented as required under Order 80 Rule 2 of the Rules of High Court, but given the correct findings of the Board against his claim and the fact that A3 has since reached majority now aged 20, any issue of a claim by an unrepresented minor is no longer relevant.  

18.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their leave application.

Dated the 22^nd 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