Pham Van Ngan v. Torture Claims Appeal Board

HCAL 1510/2022

[2023] HKCFI 462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1510 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 6 September 2018 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Vietnam who entered Hong Kong illegally on 12 September 2015 and was arrested by police on 18 September 2015. 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 creditors over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Hin Ninh Province, Vietnam. After leaving school he worked as a general labourer in his home district, and in 2011 he started to run a cooked food stall by borrowing loans from 2 fellow villagers with monthly interest payments until full settlement of the loans.

3.Initially the Applicant managed to make his monthly interest payments on time from his business income until February 2014 when his food stall business deteriorated, and when he started to have difficulty keeping up with his interest payments, his creditors would send unknown men to his stall to threaten and beat him with wooden sticks and other weapons.

4.After several such beatings that resulted in cuts and bruises all over his body which required medical treatments at the local hospital, the Applicant became fearful for his life and fled from his home village to hide in his friend’s place in Hanoi, but later when he heard that his creditors had sent men to look for him everywhere, the Applicant felt it was no longer safe to remain in Vietnam, and so on 6 September 2015 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 26 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 2 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”).

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 creditors 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 his creditors to seriously harm or kill him other than to put pressure on him to repay his loans, 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 creditors to locate him.

7.On 12 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before his appeal could be heard or dealt with by the Board, the Applicant on 31 July 2018 wrote to request to withdraw his appeal/petition as his problem in his home country had been resolved and that he wanted to return to Vietnam.

8.Upon receiving further written confirmation from the Applicant that he was well aware of the consequences of his proposed withdrawal, that it was safe for him to return to his home country, and that it was his firm intention to withdraw his appeal/petition, the Board by a Decision dated 6 September 2018 allowed his request and directed that his appeal be dismissed and that the Director’s decision be confirmed.

9.It is not clear whether the Applicant did thereafter leave Hong Kong to return to Vietnam, but more than 4 years later on 15 December 2022 he filed a Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he just stated that he does not agree with the decision of the Board as he cannot return to Vietnam where his life is still in danger but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.By then it is also obvious that the Applicant was 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 to extend the period within which the application shall be made.

11.As the last day of the three-month period for him to file his Form 86 fell on 6 December 2018, the Applicant was therefore more than 4 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.

12.In the Applicant’s case, a delay of more than 4 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record clearly shows that decision was sent on the same day to his then reported address without being returned through undelivered post, I am unable to see any reason or excuse for such serious delay of the Applicant.

13.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, or for that matter any reason why more than 4 years later that he now wants to challenge the Board’s decision to withdraw his appeal/petition at his own request and upon confirming that his problem in his home country had been resolved and that he wanted to return to Vietnam. As such and in the absence of any error of law or irrationality or procedural unfairness in the 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.

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.In the Applicant’s case, the Board dismissed his claim upon his own application to withdraw his appeal/petition and upon his written confirmation that his problem in his home country had been resolved and that it was safe for him to return to Vietnam, and after having acceded to his application, the appeal procedure came to an end and the Board became functus officio, and that there is no delegated power or jurisdiction for the Board to re-open or reinstate the cancelled, withdrawn and/or abandoned appeal notwithstanding the lack of determination on its merits, as otherwise not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying to proceed with the appeals: see Re Das Purnima Rani [2019] HKCA 669.

16.If for whatever reason that more than 4 years later the Applicant now wants to challenge the Director’s decision in rejecting his non-refoulement claim, even putting aside the same problem of his serious delay with his application, the fact is that it had been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim on the factual basis of his own case at the highest 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 in the first place to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.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 respective part to apply high standards of fairness in the consideration and assessment of the Applicant’s claim or of his application to withdraw his appeal/petition.

18.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 10^th day of March 2023.

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