Nguyen Khac Chuan v. Torture Claims Appeal Board

HCAL 3536/2019

[2022] HKCFI 2317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 3536 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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of Vietnam who entered Hong Kong illegally on 9 March 2016 and was arrested by police on 14 March 2016. 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 over his unpaid debts. 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 served in the Army for 18 months before returning to his home district to work as a farmer to make his living.

3.In August 2015 he planned to start his own business selling electrical appliances, and for the business capital he borrowed a loan from a local money-lender repayable within one year and with monthly interest payments, but after getting the loan in cash which he brought home and stored in a cabinet, but 2 days later he discovered that all of it had been burgled, of which he reported to the police but no arrest had been made.  

4.As a result the Applicant was unable to start any business, and without which he was unable to make any repayment to his creditor, and after he was threatened and beaten by men sent by his creditor, he fled to Hanoi in September 2015, and on 5 March 2016 he departed Vietnam 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 26 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 8 December 2016 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 his 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 the Applicant other than to put pressure on him to repay his debts, that in any event 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 upon his return to Vietnam, 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 310,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man with working experience to move to other part of the country 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 20 December 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it was finally determined and dealt with by the Board, he on 30 November 2018 wrote to the Director requesting to withdraw his appeal to the Board as his problem in Vietnam had already been resolved, that it was safe to return to his home country, and that he would like the Hong Kong Government to arrange for him to return to Vietnam.

8.The request was then placed before the Board for its consideration, and upon the Applicant written confirmation of his request and that he was fully aware of the consequence of such request, the Board by a letter dated 14 December 2018 to the Applicant that his appeal had accordingly been withdrawn and dismissed, and that the Director’s decision had also been confirmed. 

9.However, almost one year later on 28 November 2019 the Applicant filed a 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 repeated his claim as before of that his life will still be in danger due to threats from his creditor over his unpaid debts but without putting forward any proper ground for his intended challenge of a decision to withdraw his appeal at his own request and upon his confirmation that his problem had been resolved and that it was safe for him to return to his own country, nor did he request any oral hearing for his application.

10.By then the Applicant was also seriously 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 day 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 3-month period for him to file his Form 86 fell on 14 March 2019, the Applicant was therefore more than 8 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 The Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of more than 8 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation either in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

13.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge other than a regurgitation of his claim of fear of being harmed or killed by his creditor over his outstanding debts, but without any explanation as to why in 2018 when he applied to withdraw his appeal that he claimed to have already resolved his problem and that it was safe for him to return to Vietnam, nor is there any evidence that his withdrawal is somehow invalid in that he might have been misled into making such request as there is simply no such suggestion from him in his Form or affirmation at all. As such I am unable to see any basis to challenge the Board’s decision to withdraw and dismiss his appeal at his own request as a result of a deliberate and informed decision on his part, nor do I find any merits in his intended application in the circumstances: see Re Das Purnima Rani [2019] HKCA 669.     

14.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.

15.The fact is that it was also established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized private monetary dispute between him and his creditor without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam, and that it is not unreasonable or unsafe for him to relocate to other part of the country without any risk of being located, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

16.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.

17.Furthermore, the Applicant recently on 16 June 2022 filed an affirmation requesting to withdraw his application as all his problems in Vietnam have been settled and that it is safe for him to return to his home country.

18.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 upon his latest confirmation that his problems have been resolved and that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 29^th day of July 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