Pham Van Tuyen v. Torture Claims Appeal Board

HCAL 1609/2020

[2023] HKCFI 1978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1609 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 / 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 19 September 2019 refused; and

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

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Vietnam who entered Hong Kong illegally on 16 June 2015 and surrendered to the Immigration Department on the same day and raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by certain local gangsters for refusing to pay extortion money. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school he ran an antique shop in his home district to make his living, but in early 2015 some local gangsters started to demand extortion money from him, and when he refused, they beat him and vandalized his shop, and threatened to kill him next time if he still refused to pay them extortion money.

3.Fearing for his life, the Applicant fled to Mong Cai, and on 12 June 2015 departed Vietnam 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 2 May 2018 and attended screening interview before the Immigration Department with legal representation.

4.By a Notice of Decision dated 17 May 2018 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”).

5.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 those local gangsters 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 for money, 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 96 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 those local gangsters to locate him.

6.On 10 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, and in pursuant of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a decision dated 19 September 2019 the Board refused the late filing of the Applicant’s Notice of Appeal.

7.In its decision the Board found that the Director’s decision was served on the Applicant through his lawyer on the same day of 17 May 2018 without being returned through undelivered post, that his Notice of Appeal lodged with the Board on 10 August 2018 was therefore more than 2 months late, that the length of the delay was not insignificant, that the Applicant had failed to provide sufficient evidence to justify such delay, and that there were no special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

8.On 4 August 2020 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 or in his supporting affirmation of the same date in which he just stated that he does not agree with the decision as he cannot return to Vietnam where his life will be in danger but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

9.By then the Applicant was also 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.

10.As the last day of the 3 month-period for him to file his Form 86 fell on 19 December 2019, the Applicant was therefore some 7 ½ months 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.

11.In the Applicant’s case, a delay of 7 ½ months must be considered as very substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am not satisfied that the Applicant has provided any good or valid reason for his serious delay.

12.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forth any proper ground for his intended challenge. As such 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 reasonably arguable basis for his intended challenge or any merits in his intended application.

13.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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

14.The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s 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 vJenkins & Anor [2013] 1 HKC 526.

15.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 the Director’s consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s decision to refuse the late filing of his Notice of Appeal.

16.Furthermore, according to the Director’s latest confirmation dated 3 April 2023, the Applicant had already been repatriated to Vietnam on 22 February 2023, and hence his claim must be treated as having been withdrawn under Section 37ZF(3) of the Ordinance.

17.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of the fact that he has already been repatriated to his home country, I accordingly dismiss his leave application.

Dated the 2^nd day of August 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