Nguyen Tuan Vinh v. Torture Claims Appeal Board

HCAL 708/2022

[2022] HKCFI 3176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 708 of 2022

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 26 May 2021 refused; and

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

Observations for the Applicant:

1.The Applicant is a 20-year-old national of Vietnam who last entered Hong Kong illegally on 28 May 2019 and was arrested by police on 10 September 2019 for the offences of illegally remaining in Hong Kong and in possession of a fake identity card as well as undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for 14 months, during which he raised a non-refoulement claim to the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by the local officials from his home village due to his father’s dispute with them over the compensation for the resumption of his family land by the officials. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in a village in Hai Phong City, Vietnam. After leaving school he worked in the factory and continued to reside in his family house with his parents in his home district.

3.In 2014 the land in his home village were resumed by the local officials for redevelopment, for which the villagers including his father were to be given cash compensation, but which was opposed by the villagers who staged mass protests in the village during which their leaders together with the Applicant’s father were arrested by the local officials and were put in prison.

4.Upon later being released from prison his father then left the country without any further news, but the Applicant felt he was being discriminated by the local officials when he was refused the issue of his national identity card upon reaching the age of 14, without which he had difficulty finding jobs in Vietnam, and so in 2017 he left Vietnam to work in China before sneaking into Hong Kong later in August 2018 to look for jobs, but was subsequently arrested and repatriated to Vietnam in April 2019.

5.Upon returning to his home district, he took shelter in his friend’s place, and one month later in May 2019 he again departed Vietnam for China, and from there he again sneaked into Hong Kong, and after he was arrested by police for possessing a fake identity card and undertaking unauthorized employment for which he was later convicted and sentenced to prison for 14 months, during which he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 November 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 14 January 2021 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”).

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 the local officials upon his return to Vietnam as low due to the absence of any past ill-treatment from them, that he was never involved in the land resumption dispute between his father and the local officials when he was then only a child and that there is no evidence of any adverse interest of the government or authorities in him or of any refusal of the issue of the national identity card to him other than his own bare assertion, and that reliable and objective Country of Origin Information (“COI”) show that there are laws and legal system in Vietnam to protect the rights of its citizens from being abused by local corrupt officials and to resolve disputes with the government such as land resumptions and compensations, and that reasonable internal relocation alternatives are also available in Vietnam with a large population of 98 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 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 any local corrupt officials of his home district to locate him.

8.On 25 January 2021 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 4 May 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 May 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s claim of land dispute between his father and the local officials in his home village but found no adverse interests in him as he was then just a child and was never involved in such dispute, nor is there any reliable evidence other than his own bare assertions of any discriminations by the government or authorities against him including any refusal of the issue of the national identity card to him, and that relevant COI show that there are laws and legal system in Vietnam to protect the rights of its citizens from any abuses by local corrupt officials that state protection will be available to the Applicant if needed upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by any corrupt local officials that his claim for non-refoulement protection failed on all applicable grounds.

10.On 2 August 2022 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 just stated that he does not agree with the decision as he cannot return to his home country where his life is still in danger but without putting forth any proper grounds for his intended challenge, nor did he request any oral hearing for his application.

11.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.

12.By then the Applicant was also out of time with his application, as Order 53 rule 491) 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 3 months from the day when grounds for the application first arose unless there is good reason for extending the period within which the application shall be made.

13.As the last day of the three-month period for him to file his Form 86 fell on 26 August 2021, the Applicant was therefore almost 1 year 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.

14.In the Applicant’s case, a delay of almost 1 year must be considered as extremely substantial and inordinate, for which he did not provided any explanation in his Form or affirmation, and as the record shows that the decision as sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid reason for his such serious delay.

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

16.As clearly shown in its decision, the Board rejected the Applicant’s claim essentially on its findings of no proper basis or substance to believe there would be any risk of any harm from anyone to him upon his return to Vietnam for the thorough and detailed analysis and reasoning set out in paragraphs 59 – 80 of 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 merits in his intended application either.

17.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if exists 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.

18.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.

19.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 his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 14^th day of October 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