Vu Phuong Thao v. Torture Claims Appeal Board

HCAL 810/2021

[2023] HKCFI 2926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 810 OF 2021

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 25 November 2020 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 30-year-old national of Vietnam who entered Hong Kong illegally on 19 June 2019 and was arrested by police shortly thereafter.  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 gangsters sent by the family of the victim murdered by her father for failing to pay compensation.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Thuy Nguyen District, Hai Phong City, Vietnam.  After leaving school she worked as a farmer and then in a garment factory, formed a relationship with a man and raised a family with a daughter in her home district.

3.In 2011 her father was arrested by police for murdering his mistress after she had stolen his money, for which he was subsequently convicted by the court and sentenced to death penalty and to pay compensation to the victim’s family.

4.However, her father did not pay the compensation while in prison waiting for his execution, and in 2016 some men started to come to the Applicant’s home claiming to be sent by the victim’s family to demand for payment of the compensation, and when the Applicant was unable to do so, they then made death threats against her and her family.

5.After several incidents when she was attacked by unknown men including one occasion when she was raped by 2 of them, the Applicant became fearful of further attacks and that she might eventually be killed, she therefore departed Vietnam on 18 June 2019 for China, and from there she later sneaked into Hong Kong, and upon 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 9 September 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

6.By a Notice of Decision dated 14 October 2019 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and personal risk of her being harmed or killed by gangsters sent by the victim’s family upon her return to Vietnam due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that those assailants were in fact sent by the victim’s family or that they had any real intention to seriously harm or kill the Applicant, that in any event it was a private monetary dispute between her father and the victim’s family 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 97 million people spread across a vast territory of more than 330,000 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.

8.On 22 October 2019 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 16 September 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 25 November 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found no evidence that those men who had assaulted or raped her as alleged by the Applicant were sent by the family of her father’s murdered victim that it doubted her claim of fear of harm from them that caused her to leave her home country to come to Hong Kong for protection, and that in any event in the absence of 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.    

10.On 2 June 2021 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 attached a copy of the decision and merely repeated her claim as before that she will be at risk of being harmed or killed if refouled to Vietnam but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.By then the Applicant was also 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.

12.As the last day of the 3 month-period for her to file her Form 86 fell on 25 February 2021, the Applicant was therefore more than 3 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.

13.In the Applicant’s case, a delay of more than 3 months must be considered as very substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day of 25 November 2020 to her then reported address which is the same as stated in her present application without being returned through undelivered post, I am unable to see any good or valid reason for her 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 reasonably arguable basis for her intended challenge or 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 if real 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 her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.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.Moreover, the Applicant recently on 7 September 2023 filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country.  

19.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 the absence of any good reason for her serious delay and in view of her latest confirmation that it is safe to return to her home country, I refuse to extend time and accordingly dismiss her leave application.

Dated the 14^th day of November 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