Nguyen Thi Mai Loan v. Torture Claims Appeal Board

HCAL 1734/2020

[2023] HKCFI 1937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1734 OF 2020

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.  Leave to amend Form 86 to include the Applicant’s daughter, Pham My Truc Linh be refused;

2.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 December 2018 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 31-year-old national of Vietnam who entered Hong Kong illegally on 6 August 2015 and was arrested by police on the same day. After she was referred to the Immigration Department for investigation, 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 and her own creditor over their loans and monetary disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Hai Phong, Vietnam. After leaving school she continued to reside with her parents, and worked in various odd jobs in her home village where her parents worked in their hawking business with the assistance of various loans borrowed from time to time from a fellow villager by the name of Nguyen.

3.In 2014 the Applicant’s mother was diagnosed with cancer and required substantial medical expenses, for which the Applicant through her then boyfriend borrowed a loan from a local money-lender by the name of Long, but after her mother subsequently died in late 2014, her parents’ creditor Nguyen came to demand for repayment of their loans, and when the Applicant’s father subsequently ran away and disappeared, Nguyen turned to the Applicant for repayment of her parents’ debts with threats and harassments.

4.Soon the Applicant’s creditor Long also came chasing for repayment of her own loan with threats, and after being beaten by both Long and Nguyen on several occasions, the Applicant became fearful for her life and fled to Mong Cai, and on August 2015 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and after her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 26 January 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 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”).

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 the creditors Nguyen and Long upon her 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 her other than to press her for repayments of the loans, that in any event they were private monetary disputes 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 areas 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 anyone to locate her.

7.On 9 February 2017 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 28 September 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 7 December 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from Nguyen and Long over their loans or monetary disputes but found no evidence of any real intention of them to seriously harm or kill the Applicant other than to press her for repayments of the loans, and that in any event they were private monetary disputes between them without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.On 27 August 2020 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 or in her supporting affirmation of the same date in which she just repeated her claim as before of fear of harm from those creditors if refouled to her home country but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application.

10.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.

11.As the last day of the 3 month-period for her to file her Form 86 against the Board’s decision fell on 7 March 2019, the Applicant was therefore some 17 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.

12.In the Applicant’s case, a delay of 17 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that she did not receive the decision in the mail, and that she was not aware that she could challenge the decision by way of judicial review until much later when she was so advised by her friends, but by then she was already seriously out of time with such application.

13.The record shows that the decision was sent on the same day of 7 December 2018 to her then reported address without being returned through undelivered post, and in the absence of any details or evidence to corroborate her bare assertions, I am not satisfied that the Applicant has any good or valid reason for her such serious delay.

14.As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forth any proper ground for her intended challenge. As such, 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her 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.

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 part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

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

19.I should also mention that while being released on recognizance pending the determination of her non-refoulement claim by the Director, the Applicant formed a relationship with a fellow Vietnamese non-refoulement claimant and gave birth to their daughter on 28 October 2017 in Hong Kong, for whom the Applicant also raised a non-refoulement claim which was separately assessed by the Director and rejected on 7 January 2019, while the subsequent appeal to the Board was also later withdrawn by the Applicant on 6 March 2019, but at the hearing of her own leave application before me, the Applicant requested to allow her to include her daughter’s case in her application, but of which I found no basis, legally and procedurally, for the Applicant to do so given the fact that her daughter’s appeal had already been withdrawn without any determination by the Board for there to be any legal challenge by way of judicial review, and that procedurally the Applicant would have to first seek to re-open or re-instate her daughter’s appeal before the Board if the withdrawal in 2019 was not validly made. Accordingly I also refused the Applicant’s request to include her daughter’s case in her 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