Pham Van Hieu v. Torture Claims Appeal Board

HCAL 1681/2021

[2022] HKCFI 2674

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1681 of 2021

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 32-year-old national of Vietnam who entered Hong Kong illegally on 7 June 2016 and surrendered to the Immigration Department on the next 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. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Thuy Nguyen District, Haiphong City, Vietnam. After leaving school he worked as a delivery worker in his home district.

3.In April 2012 he started a farming business raising domestic animals in his home district with a loan from a local money-lender with monthly interest payable until discharge of the loan.

4.The Applicant was able to make his monthly interest payments from his business income until April 2015 when a plague wiped out his farm animals that he lost his business, and when he was unable to repay his loan, the money-lender sent his men to threaten him, and after being beaten by those men on 2 occasions, the Applicant fled to Quang Ninh Province to take shelter in his uncle’s place.

5.However, later in early 2016 when he was later located by those men who came to his uncle’s place to attack him with knives that he was stabbed in his waist, but he managed to make his escape from those men to seek medical treatments.

6.After the last incident, the Applicant felt it was no longer safe to remain in Vietnam, and so on 4 June 2016 he departed 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 22 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 13 June 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”).

8.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 other than to press 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, 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 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.

9.On 26 June 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 21 December 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 June 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his claim of borrowing a loan for his farming business that it doubted the credibility of his claim of fear of harm from his creditor over his outstanding debts that caused him to flee his country for Hong Kong, and 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 upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other part of eth country away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.

11.On 10 June 2019 the Applicant filed a Form 86 under HCAL 1564/2019 for leave to apply for judicial review of the Board’s decision, but before his application could be dealt with by the Court, the Applicant on 9 December 2019 filed an affirmation requesting to withdraw his application as his debt problem had been resolved with assistance of his family members in Vietnam that he wanted to return to his home country. On 16 December 2019 his application was allowed to be withdrawn.     

12.However, 2 years later on 13 December 2021 the Applicant filed another Form 86 in these proceedings again for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he explained that it turned out that his family members tried to settle his debts by instalments but was later rejected by his creditor, and hence the risk of harm from his creditor has still remained, and upon later being informed by his family, he decided to apply to re-open his leave application, and put forward the following grounds for his intended challenge:

(1) That the Board failed to take account of the reason why the Applicant withdrew his previous claim and that the threats from his creditor have since become worse including attacking his family in his home country and threatening him on the phone; and

(2) That the Board failed to attain high standard of fairness required by the Wednesbury test in its decision which should be considered as unreasonable in the scope of public law.  

13.By then the Applicant was of course seriously out of time with his second Form 86, 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.

14.As the last day of the three-month period for him to file his Form 86 fell on 3 September 2019, the Applicant was therefore more than 2 years 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 years must be considered as extremely substantial and inordinate, but given the fact that his first Form 86 for leave to apply for judicial review of the Board’s decision was well within the 3-month period, and having considered his explanation given in his affirmation, I gave the Applicant the benefit of the doubt by accepting his explanation for the delay as noted above, and propose to focus on the merits of his intended application.    

16.However, those grounds put forth by the Applicant as stated above are just some vague and bare assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board had erred in its decision, or in what way did the Board fail to apply high standards of fairness in its assessment and determination of his claim, while it is clear from both decisions of the Director and the Board that the situations of the Applicant as alleged by him have been properly considered and determined by both of them in their assessments of his claim. As such I do not find either of the grounds reasonably arguable 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.

17.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.

18.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 39 – 43 of in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.  

19.The fact is that it has also been correctly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if true 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 18 July 2022 wrote to request to withdraw his application as his problem in Vietnam has been resolved and that it is now safe for him to return to 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 given his latest confirmation that it is now safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 2^nd day of September 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