Bui Thi Van Anh v. Torture Claims Appeal Board

HCAL 727/2021

[2022] HKCFI 3639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 727 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 24-year-old national of Vietnam who last entered Hong Kong illegally on 20 January 2019 and was arrested by police on 24 January 2019 for theft for which she was subsequently convicted and sentenced to prison for 4 months, and after her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her parents’ creditor over their outstanding debts.

2.The Applicant was born and raised in Tu Son, Kien Thuy, Hai Phong, Vietnam. After leaving school she worked in the factory in her home district where her parents used to run a fish and poultry farm.

3.In 2016 her parents borrowed a loan from a local money-lender for the running of their farm, with the loan repayable by instalments plus interests, but later when her father developed a liver disease and gradually became unable to run the farm which had to be eventually closed down, and when he was unable to repay his loan, his creditor started to send his men to threaten him, and after being beaten by them on one occasion in April 2018, his parents fled to Hai Phong City to take shelter in her uncle’s place, where her father later in the same year died of his liver disease.

4.Meanwhile when those men could not find her parents, they then grabbed the Applicant and took her to an empty hut where she was kept for 2 days, but she subsequently managed to make her escape to Hai Phong City to hide in a relative place, and on 30 April 2018 she departed Vietnam for China, and from there she later sneaked into Hong Kong where she was arrested by police on 2 May 2018, and when she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection but which she later withdrew and was on 4 October 2018 repatriated to Vietnam.

5.Shortly after her return to her home in Hai Phong, the money-lender again came with his men to demand for repayment of her parents’ debts, and for which she was subsequently given a few months to do so, but even though she found a job working in a local shoe factory, she was still unable to earn enough to repay the debts, and so they abducted her to an empty hut and raped her, but several days later she managed to make her escape and fled to Mong Cai, and on 19 January 2019 she again departed Vietnam for China, and from there she again sneaked into Hong Kong, and upon her arrest she again raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 April 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 3 June 2019 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 doubted the credibility of her claim of fear of harm from her parents’ creditor that caused her to flee her home country for Hong Kong due to the inconsistencies and implausibility of her account of the past events that the Dircetor found no substantial grounds for believing that there will be any real or substantial risk of her being harmed or killed upon her return to Vietnam, that in any event even if true that it was a private monetary dispute between her and her parents’ creditor 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 97 million people spread across a vast territory of more than 330,000 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 her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her parents’ creditor to locate her.

8.On 13 June 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 11 October 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 November 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from anyone to cause her to flee from her home country for Hong Kong that it rejected her claim of her parents incurring heavy debts or that she became liable for repayment of such debts or that she had been so threatened or assaulted or raped by their creditor and his men as a result that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

10.On 20 May 2021 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, and in her supporting affirmation of the same date she just repeated her claim as before that she will be killed by her creditor upon her return to Vietnam but without putting forward any proper ground for her intended challenge.

11.By then the Applicant was also seriously 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 14 February 2020, the Applicant was therefore more than 15 months 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 or more than 15 months 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 see any good reason for her serious delay.

14.As for the merits, if any, of her intended application, as noted above the Applicant has 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 the 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.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 21 – 58 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her 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.

17.The fact is that it has also been established by the Director in his 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 her to relocate to other part of Vietnam, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.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.Furthermore, the Applicant has recently written to withdraw her application as she now wants to return to her home country.

20.In the premises, as I am for the above reasons 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 and given her latest confirmation of her wish to return to her home country, I accordingly dismiss her leave application.

Dated the 2^nd day of December 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