Bui Khanh Ly Alias Bui Thi Khanh Ly v. Torture Claims Appeal Board
Read the full judgment text of HCAL 292/2022 on BabelCite. This High Court CFI judgment was delivered on 6 June 2022.
1. The Applicant is a 31-year-old national of Vietnam who entered Hong Kong illegally on 6 July 2015 and surrendered to the Immigration Department on the following day when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her mother’s creditor over her mother’s outstanding debts and/or persecution by the authorities over her deceased father’s political activities in the past. She was subsequently released on recognizance pending the
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HCAL 292/2022 [2022] HKCFI 1679 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 292 of 2022
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 31-year-old national of Vietnam who entered Hong Kong illegally on 6 July 2015 and surrendered to the Immigration Department on the following day when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her mother’s creditor over her mother’s outstanding debts and/or persecution by the authorities over her deceased father’s political activities in the past. She was subsequently released on recognizance pending the determination of her claim. 2.The Applicant was born in Hong Kong but raised in Hai Phong City, Vietnam where her parents used to run a coffee beans business, but in 2004 her father was arrested by the authorities and put in prison for his involvement in some political activities and later died in prison, but the authorities continued to put her family under constant surveillance and would often send security agents to monitor their home and to question her mother for any political activities. 3.Since her father’s death her mother found it difficult to run the business by herself, and had had to borrow a loan from a local loan shark to operate the business with another partner, but after she was cheated by her partner and lost the coffee bean business, and when she was unable to repay her loan, the loan shark would send men to threaten and beat her mother while the Applicant was then away attending university. 4.One day in May 2015 when she returned home to visit her mother, the loan shark and his men again came to demand repayment from her mother, and when they saw the Applicant and her sister, they threatened to sell them as prostitutes if the debts were not settled soon. 5.As a result the Applicant became fearful for her life, and would stay away from her home district by travelling to various countries in the South East Asia to avoid the loan shark and his men, and on 1 July 2015 she and her mother and sister departed Vietnam for China where her sister subsequently disappeared, and from there she and her mother later sneaked into Hong Kong and raised their non-refoulement claim for protection separately, and for her own claim the Applicant completed a Non-refoulement Claim Form (“NCF”) on 27 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 22 December 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 her 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 Applicant’s claim and assessed the level of risk of harm from her mother’s creditor and his men upon her return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between her mother and her creditor without any official involvement that state or police protection would be available to the Applicant if resorted to, that there was no evidence of any adverse interest from the authorities in the Applicant over her father’s past political activities in the past when she was then just a small child that it is not accepted that she has been targeted by the Vietnamese authorities or that she would face any risk of harm or persecution from them, 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 96 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 young adult with university education to move to other part of Vietnam away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her mother’s creditor to locate her. 8.On 4 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled hearing on 24 June 2019 before the Board without any explanation when her lawyer from DLS also applied to withdraw from her representation, and in the absence of any further response from the Applicant thereafter, the Board proceeded to deal with her appeal in her absence and on paper. On 12 August 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision the Board found from the materials in the hearing bundle before it no evidence of any adverse interest from the Vietnamese authorities in the Applicant, and on the basis of her claim of fear of harm from her mother’s creditor that it was a private monetary dispute without any official involvement that state/police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located by her mother’s creditor that her claim for non-refoulement protection failed on all applicable grounds. 10.On 3 May 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, or in her supporting affirmation, nor did she request any oral hearing for her application. 11.By then the Applicant was however also serious out of time with her 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. 12.As the last day of the three-month period for her to file her Form 86 fell on 12 November 2019, the Applicant was therefore almost 2 ½ years late with her 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 almost 2 ½ years must be considered as extremely substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I am unable to find any good reason for her such serious delay. 14.As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before eth Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her 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.Furthermore, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her 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 her serious delay, I refuse to extend time and accordingly dismiss her leave application. Dated the 6th day of June 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 |
Cases cited in this judgment
Further hearings and rulings under HCAL 292/2022