Nguyen Dang Huy v. Torture Claims Appeal Board

HCAL 2117/2020

[2022] HKCFI 1944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2117 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 the Applicant 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 12 May 2020 refused; and

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

Observations for the Applicant:

1.The Applicant is a 33-year-old national of Vietnam who entered Hong Kong illegally on 21 October 2015 and surrendered to the Immigration Department on the following day when 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 and from which he would not get police protection. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Huyen Luc Ngan, Bac Giang Province, Vietnam. After leaving school he went to China to work in a toy factory for 3 years before returning to his home district in Vietnam in 2010 to start his own bar and restaurant business by borrowing a loan from a local money-lender repayable within one year with monthly interest payments.

3.However, his business did not fare well that by August 2012 he was unable to make any of his loan repayments, and the money-lender would come with his followers to the Applicant’s restaurant to threaten him, and on several occasions they vandalized his restaurant and beat him with wooden sticks that caused him to suffer him cuts and bruises all over his body.

4.During one such assault in 2014, the Applicant in self-defense struck back at one of the men with a rock that seriously injured his head, and as a result the money-lender and followers all left immediately thereafter.

5.A week later the Applicant was arrested by police for severely wounding the money-lender’s follower, and for which he was charged and was brought to the court when he was subsequently convicted and sentenced to prison for 5 years, but was later released on bail pending his appeal.

6.In August 2015 he lost his appeal, and was again granted bail pending his final appeal to the Central Committee, but as he was afraid that he would lose again and would be murdered in prison by the followers of the money-lender, he therefore departed Vietnam on 22 September 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.While being released on recognizance pending the determination of his claim, the Applicant was arrested twice by police respectively for possession of a false identity card and for theft, for both of which he was convicted and sentenced to prison for totally 18 months.                

8.By a Notice of Decision dated 26 July 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”).

9.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 there is no evidence of any real intention of them to seriously harm or kill him given the fact that they had had amply time and opportunity to do so for several years prior to his departure from the country in 2015, that it is not accepted that he would be harmed or murdered by them while in prison without any protection from the authorities other than his own groundless speculation or that he would be denied due process in the criminal charge against him by the authority when he had all along been granted bail and to bring his appeal to the highest court or authority, that his problem with his creditor was essentially 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 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 to other part of Vietnam away from his home district such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

10.On 7 August 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 10 May 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 May 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his fear of being harmed or killed by his creditor over his outstanding debts that it doubted the credibility of his claim, that there was no basis for his fear of being harmed or killed by his creditor’s followers if he were in prison without any protection from the authorities other than his own groundless speculation, as it was essentially a private monetary dispute between him and his creditor without any official involvement that state/police protection would be available to the Applicant if needed upon his return to Vietnam, and that reasonable internal relocation would also be available for him to move safely to other part of the country without any risk of being located by his creditor or followers that his claim for non-refoulement protection failed on all the applicable grounds.

12.On 22 October 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 merely stated that he is not satisfied with the decision and that he cannot return to his home country where his life is still in danger but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

13.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 relief 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.

14.As the last day of the three-month period for him to file his Form 86 fell on 12 August 2020, the Applicant was therefore more than 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.

15.In the Applicant’s case, a delay of more than 2 months must be considered as very substantial and inordinate, for which he explained at the hearing of his application that at that time he just changed his address but without informing the authorities, and it was later when he was being detained at the Castle Peak Bay Immigration Centre (“CIC”) that he was informed by his immigration officer of the decision, but by then he was already out of time with his application. He did not provide any further details or evidence in support of his assertions.

16.The record shows that the Board’s decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and if he had indeed at that time changed his address without informing the authorities, of which it was his duty to do so, he had only himself to blame for failing to receive the decision in time and for the resultant delay. As such I do not find any good reason for the Applicant’s serious delay.   

17.As for the merits, if any, of his intended application, as noted above the Applicant has 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.

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, 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 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.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.Furthermore, the Applicant recently on 15 June 2022 wrote to apply to withdraw his application as his life is no longer in danger in his home country.

22.In the premises, as I am for the reasons given 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, and in view of his latest confirmation that his life is no longer at risk in his home country, I refuse to extend time and accordingly dismiss his leave application.

Dated the 30^th 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