Do Van Quang v. Torture Claims Appeal Board

HCAL 704/2023

[2023] HKCFI 1938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 704 OF 2023

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 the Applicant 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 4 January 2023 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 28-year-old national of Vietnam who last entered Hong Kong illegally on 8 March 2020 and surrendered to the Immigration Department on 14 April 2020 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 unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Thy Nguyen District, Hai Phong City, Vietnam. After leaving school he worked in various jobs in his home district, and on 25 July 2018 he departed Vietnam for China, and from there he sneaked into Hong Kong, but was soon arrested by the police and was on 9 October 2018 repatriated to Vietnam.

3.Upon returning to his home district, he opened a clothing boutique by borrowing a loan from a local money-lender with monthly interest payments until the repayment of his loan.

4.Initially the Applicant managed to make his interest payments from the business income of his boutique, but when the business deteriorated in 2020 due to the Covid-19 pandemic, the Applicant was unable to keep up with his loan payments, and one day in February 2020 his creditor came with his men and beat him with wooden sticks that he suffered cuts and bruises all over his body, and before they left, his creditor warned him that he would be killed if he still failed to repay his loan within 3 days.

5.After the beating the Applicant became fearful for his life, and so he fled to Quang Ninh Province, and on 2 March 2020 he departed Vietnam for China, and from there he again sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 March 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 28 April 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 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 was 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 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 adult with working experience to move to other areas 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.

8.On 17 May 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 16 December 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 January 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of fear of harm arising from his dispute with his creditor over his outstanding debts but found no evidence of any real intention of his creditor to seriously harm or kill him other than to press him for repayment of his loan, 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 the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 12 May 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward one single ground for his intended challenge in that the Board had underestimated the injuries and cruel treatment that he had suffered in Vietnam which put him under imminent danger and threat to his life if refouled to his home country.

11.By then the Applicant was however 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 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 3 month-period for him to file his Form 86 fell on 4 April 2023, the Applicant was therefore some 5 weeks 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.

13.In the Applicant’s case, a delay of 5 weeks must be considered as substantial and inordinate, for which he explained at the hearing of his application that he never received the decision in the mail, and it was only later when he reported on his recognizance that he was so informed by his immigration officer, but by then he was already out of time with his intended application.

14.The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and in the absence of any details or evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good or valid reason for his serious delay.

15.As for the merits, if any, of his intended application, the sole ground put forward by the Applicant as noted above is however just some vague and bare assertion of his without any relevant particulars or specifics or elaborations as to how it applies to his case or how the Board or the Adjudicator had erred in the decision, nor was he able to do so at the hearing of his application. As such I do not find this ground reasonably arguable for his intended challenge, and given the correct findings by both the Director and the Board that any risk arising from what was essentially a private monetary dispute between the Applicant and his creditor even on the factual basis of his own case that it would be negated by state protection and internal relocation upon his return to Vietnam, I do not find any merits in his intended application either.

16.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.

17.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim 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 28^th day of July 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