Nguyen Cong Tuyen v. Torture Claims Appeal Board

HCAL 1514/2023

[2023] HKCFI 3016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1514 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 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 23 March 2023 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Vietnam who last entered Hong Kong illegally on 27 April 2020 and was arrested by police some 6 months later on 9 November 2020 for theft and unlawfully entry for which he was subsequently convicted and sentenced to prison for 16 months during which he raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Huyen Van Giang, Tinh Hung Yen, Vietnam. After leaving school he worked as a policeman, got married and raised a family with a daughter in his home district.

3.In 2018 he borrowed a loan from some local money-lender for gambling, but after losing all his money and was unable to repay his debts, the Applicant fled the country in November 2018 for Hong Kong, but after his parents managed to repay his debts on his behalf, he was then voluntarily repatriated back to Vietnam.

4.In February 2020 in order to meet his mother’s medical expenses, the Applicant borrowed a loan from another local money-lender to be repaid within 2 months with interest, but by April 2020 when he was unable to do so, and when his creditor sent his men to threaten and attack him with a knife that injured his left arm which subsequently required medical treatment at a local clinic, the Applicant became fearful for his life and fled to hide in his in-laws’ home in Cam Pha.

5.Later when he heard that his creditor had filed a complaint against him to the police, the Applicant then departed Vietnam on 27 April 2020 for China, and from there he again sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 19 October 2021 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”).

7.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 his creditor and followers upon his 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 for them to seriously harm or kill him other than to press him to repay his loan, 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 100 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 his home district in large cities such as Da Nang where it would be difficult if not impossible for his creditor to locate him.

8.On 4 April 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his notice of appeal was unsigned and incomplete in accordance with Section 37ZS of the Immigration Ordinance, it was returned to him for rectification, which he eventually did so and re-filed only on 5 September 2022, but by then it was way outside the 14-day period required by Section 37ZS (1) of the Ordinance, in pursuance of Section 37ZT (2) the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s notice of appeal under subsection (3), and in doing so the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons, and may allow it only if the Board is satisfied that the applicant had exercised all due diligence to file the notice of appeal within the required period but failed to do so because of circumstances beyond his control.

9.By a Decision dated 23 March 2023 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it was more than 9 months late, that such delay was very substantial, that the Applicant’s explanation of not receiving the decision in the mail because he had moved to another address was not acceptable in the absence of any supporting evidence, that even if it was true that the Applicant had only himself to blame for failing to inform the authorities of such change of address, and as such it was not satisfied that the Applicant had exercised all due diligence but failed to file his notice of appeal within the required period due to circumstances beyond his control.

10.On 25 August 2023 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 the Director did not fully consider his background but without providing any details or particulars or elaboration as to how he failed to do so, nor did he put forward any proper grounds for his intended challenge of the Board’s decision or request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge. 

11.The Applicant was in fact also out of time with his 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 him to file his Form 86 fell on 23 June 2023, the Applicant was therefore more than 2 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.

13.In the Applicant’s case, a delay of more than 2 months must be considered as 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 then reported address without being returned through undelivered post, I do not see any good or valid reason for his serious delay.

14.As for the merits, if any, of his intended application, as noted above that I do not find any proper ground for his intended challenge of either decisions of the Director or the Board, or any merits in his intended application.

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 Board refused to allow the filing of his seriously late notice of appeal for the thorough and detailed analysis and reasoning set out in its decision in accordance with the provisions stipulated in the Ordinance as amended on 1 August 2021, and in the absence of any error of law 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 to challenge the finding of the Board, as even if the Applicant had otherwise properly signed and completed his notice of appeal when he first filed it with the Board on 4 April 2022, he would still have been seriously late by some 4 months with his appeal to the Board, and for which he also failed to provide any explanation or justification at all.

17.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real 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 v Jenkins & Anor [2013] 1 HKC 526.

18.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.

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

Dated the 20^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