Bui Thi Kim Phuong v. Torture Claims Appeal Board

HCAL 3073/2019

[2023] HKCFI 2929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3073 OF 2019

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 28 March 2019 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 51-year-old national of Vietnam who entered Hong Kong illegally on 3 August 2018 and was arrested by police on 6 August 2018. 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 some local gangsters over their litigation dispute. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school she worked as a school teacher, married her first husband and raised a family with a son in her home district.

3.In 2004 she divorced her husband, and some 7 years later married her second husband and raised a family also with a son in her second husband’s home district in Dong Trieu City where her second husband worked as a waiter in a karaoke bar.

4.One night in 2013 some local gangsters patronized the karaoke bar, and after getting drunk they broke and damaged things in the bar, for which the Applicant’s husband demanded compensation which angered the gangsters, and during their quarrels some of the gangsters stabbed her husband with a knife who later died in the hospital.

5.As a result those gangsters were later charged by the court to pay compensation to the Applicant for the loss of financial support from her husband for herself and their son, but after making some initial payments to the Applicant, those gangsters later refused to make any further payments, and instead in 2018 started to make death threats against the Applicant.

6.As the Applicant became fearful for her life, she fled to Mong Cai, and on 1 August 2018 she departed Vietnam for China, and from there she 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”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 13 December 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 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”).

8.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 her return to Vietnam as low due to the 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 her other than to deter her from demanding for further compensation from them, that in any event in the absence of 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 300,000 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 where it would be difficult if not impossible for those gangsters to locate her.

9.On 26 December 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be dealt with by the Board, the Applicant 2 months later on 24 February 2019 in writing requested to withdraw her appeal as she considered it safe for her to return to her home country, and by a decision dated 28 March 2019 the Board allowed her request and directed that her appeal be withdrawn upon being satisfied that her application to withdraw was freely sought, that she understood the consequences of the withdrawal, and that she had good reason for her withdrawal, and that the Board also confirmed the Director’s decision.

10.However, more than 6 months later on 17 October 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date.

11.Given the fact that the Board had withdrawn the Applicant’s appeal at her own request and for good reason, and in the absence of any error of law or procedural unfairness in the Board’s decision, it is clear that for whatever reason for changing her mind over the pursuit of her non-refoulement claim, the Applicant in the circumstances can only proceed to challenge the Director’s decision by way of judicial review, but for which she was obviously out of time with such 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.In the Applicant’s case, as the Board’s decision to withdraw her appeal was made on 28 March 2019, the Applicant was clearly therefore out of time with her application to challenge the Director’s decision, 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.As noted above the Applicant has not provided any explanation for changing her mind over her challenge of the Director’s decision to the Board, nor did she put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in his decision being clearly and properly identified by the Applicant, or any evidence of official involvement in the Applicant’s claimed risk of threats from those local gangsters over their compensation dispute, and as was correctly found by the Director that any such risk would be negated by state/police protection and internal relocation available to the Applicant upon her return to Vietnam, I do not find any reasonably arguable basis for her intended challenge or any merits in her intended application.

14.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.

15.In the Applicant’s case, as noted above that it has been correctly 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 her to relocate to other part of Vietnam, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.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 the Board’s decision to withdraw her appeal at her own request and for her stated reason.

17.Moreover, the Applicant has recently on 21 September 2023 filed an affirmation requesting to “cancel” her case as she now wants to return to Vietnam.  

18.In the premises, as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of her intention 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