Nguyen Cam Duyen and Another v. Torture Claims Appeal Board

HCAL 660/2023

[2023] HKCFI 2526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 660 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 1st Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to amend Form 86 to include the 1st Applicant’s daughter, Nguyen Diep Anh as the 2nd Applicant be granted; and

2.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 11 November 2022 be refused; and

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

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 26-year-old national of Vietnam born in 1997 who entered Hong Kong illegally on 13 August 2020 and was arrested by police on 29 October 2020.  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 creditor over her unpaid debts, and after giving birth to a daughter, the 2^nd Applicant (“A2”) on 4 May 2021 out of her relationship with a fellow Vietnamese man in Hong Kong, she also raised a similar claim for A2 on the same basis which were to be assessed jointly together.  They were subsequently released on recognizance pending the determination of their claims.

2.A1 was born and raised in Cam Tay Ward, Cam Pha City, Quang Ninh Province, Vietnam.  After receiving a Diploma in Tourism Management from Hanoi University of Industry, she worked in the mobile phone retailing business and also as a concierge in her home district.

3.In 2019 A1 established her own mobile phone retail business by borrowing a loan from a local money-lender with monthly interest payments until discharge of the loan, which she initially managed to make from her business income.

4.However, starting from mid-2019 A1 was having difficulty making the monthly interest payments, and after being threatened by men sent by her creditor that she would be killed if given time that she still failed to repay her loan, A1 became fearful for her life,  and so on 10 August 2020 with her parents’ financial assistance A1 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.

5.While released on recognizance A1 formed a relationship with a Vietnamese man in Hong Kong, and out of which she later gave birth to A2 on 4 May 2021 and for whom she also raised a similar claim on the same basis, for which she completed a Non-refoulement Claim Form (“NCF”) for each of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 10 September 2021 the Director of Immigration (“Director”) rejected the Applicants’ claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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 Applicants’ claims and assessed the level of risk of harm from A1’s creditor and followers upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill A1 other than to press her to repay her loan, nor is there any reliable evidence that her creditor even knew the existence of A2 who was not to be born until May 2021, that in any event it was a private monetary dispute between A1 and her creditor without any official involvement that state or police protection would be available to the Applicants 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 100 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied and highly educated young adult with working experience to move with A2 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 A1’s creditor to locate them.

8.On 27 September 2021 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 15 June 2022 before the Board during which A1 gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 11 November 2022 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted A1’s claim of fear of harm from her creditor over her unpaid debts but found that it was a private monetary dispute between the 2 of them without any official involvement that state or police protection would be available to A1 and A2 upon their return to Vietnam, that according to relevant COI that A2 being born to a Vietnamese parent would be eligible to acquire Vietnamese citizen and with all the rights as such, and concluded that their claim for non-refoulement protection failed on all applicable grounds.    

10.On 5 May 2023 A1 filed a 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, nor was she able to do so at the hearing of her application other than to seek leave to include her daughter A2 in her application which she somehow by mistake omitted to do so at the issue of her Form 86, and to which I accordingly granted leave to include A2 in the application.

11.By then the Applicants were however already out of time with their leave 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 them to file their Form 86 fell on 11 February 2023, the Applicants were therefore some 2 ½ months late with their 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 Applicants’ case, a delay of 2 ½ months must be considered as substantial and inordinate, for which A1 explained at the hearing that she was unable to read English and needed help for the decision to be explained to her, but then in April or May 2023 she was detained at the Castle Peak Bay Immigration Center (“CIC”) for several weeks which further delayed their application.

14.The record shows that the decision was sent on the same day of 11 November 2022 to the Applicants’ last reported address without being returned through undelivered post, while A1’s subsequent detention at CIC came at least 2 months after she had received the decision and was past the deadline to file the application.  As such I am not satisfied that the Applicants have provided a good or valid reason for their serious delay.    

15.As for the merits, if any, of their intended application, as noted above that the Applicants have also failed to put forward any proper ground for their intended challenge.  As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge or any merits in their intended application.

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 Applicants’ case, I am mindful of the fact that A2 being a minor now aged just 2 years old was not legally represented in these proceedings as required under Order 80 rule 2 of the Rules of the High Court, and in dealing with her non-represented application for judicial review of the Board’s rejection of her non-refoulement claim, the Court should pay special attention to examine in the context of high standards of fairness whether her own non-refoulement claim which was essentially premised on the same factual bases of her mother’s claim had been properly and separately considered by the Board in a manner consistent with the propositions laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and summarized by the same Court in Re Jasvir Singh [2021] HKCA 53 at [30] – [33] of the judgment, and after having done so, I am unable to find any potential non-refoulement basis that may be specific to A2 but which might not have been properly advanced to the Board due to absence of legal representation in her appeal before the Board.        

18.In its decision the Board did specifically refer to the approach and propositions set out in Fabio Arlyn Timogan for the determination of A2’s non-refoulement claim ([4] of decision), and that it did also refer A2 to DLS for legal representation for her appeal before the Board but was somehow declined by DLS (see [30] of decision), and as such the Board was in my view clearly conscious of the requirements to consider A2’s non-refoulement claim separately with proper consideration to her personal circumstances, including her nationality the Board did do so in [131] of the decision as noted above, and given the benefit that it had of hearing her mother A1 in her oral evidence and her answers to questions raised of her claim, and in which A1 did not put forward any other personal circumstances specific to A2 which may advance her non-refoulement claim, clearly due to the fact that she was then barely 1 year old, and was also found by the Board that A2 could not have been within the knowledge of her creditor when A1 left the country in 2020.

19.As such, and on the basis that even on A1’s own case that her parents have been supportive of her and will not doubt do so upon her return with A2, and given the correct finding by the Board of the availability of state and police protection to the Applicants upon their return to Vietnam, in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.                 

20.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 Applicants’ claim.

21.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their leave application notwithstanding that A2 has not been legally represented in her application by treating the non-compliance with Order 80 rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and discussed in [57] of Fabio Arlyn Timogan. 

Dated the 4^th day of October 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