Hoang Thi Hong v. Torture Claims Appeal Board

HCAL 1101/2023

[2024] HKCFI 234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1101 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 3 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 41-year-old national of Vietnam who entered Hong Kong illegally on 6 April 2021 and was arrested by police on 5 May 2021.  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 creditors over her outstanding debts.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Phu Binh District, Thai Nguyen Province, Vietnam. After leaving school she worked in the factory, married her husband and raised a family with 2 children in her home district.

3.In 2016 she started to run a scrap iron trading business, and for maintaining and expending her business the Applicant in between 2018 and 2020 borrowed loans from 3 different local money-lenders with monthly interest payments which she managed to make from her business income.

4.However, her business did not fare well and in 2021 she started to default with her loans repayments, and after being threatened and beaten by her creditors and their men on several occasions, the Applicant fled from her home to hide in a friend’s place, and in April 2021 she departed Vietnam 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 17 December 2021 and attended screening interview before the Immigration Department with legal representation.             

5.By a Notice of Decision dated 25 January 2022 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of her being harmed or killed by her creditors 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 any of them to seriously harm or kill her other than to press her to repay her loans, that in any event they were private monetary disputes between the Applicant and her creditors 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 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 her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditors to locate her.

7.On 4 February 2022 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 17 November 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 3 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from her creditors over her outstanding debts but found no evidence of any real intention of any of them to seriously harm her other than to press her for repayment of her loans, and that in any event such risks if real arose from some private monetary disputes between the Applicant and her creditors without any official involvement that state or police protection would be available to her upon her return to Vietnam to minimize or negate any such risks that her claim for non-refoulement protection failed on all applicable grounds.    

9.On 6 July 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Adjudicator reached the decision wrongly in assessing her non-refoulement claim in failing to recognize her right to life must be protected by criminal law from the killing that she may face if deported back to her home country;

(2)  That the Board failed to appreciate or give weight to the presence of state Acquiescence in her case which led to an unfair outcome of rejecting her non-refoulement claim;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take her personal background and experience into account;

(4)  That the Board had listed relevant COI which supported her aversions that the police in her home country would not be able to protect but failed to consider or give enough weight to such evidence and instead ruled otherwise against her case;

(5)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer any response which was a clear case of unfair attitude shown by the Board which in itself is enough to render the decision void;

(6)  That the Board failed to attain high standard of fairness in failing to consider the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law; and

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal/petition based on findings which ought to have allowed the appeal/petition and hence the decision was irrational.

10.By then the Applicant was however 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.

11.As the last day of the 3 month-period for her to file her Form 86 fell on 3 June 2023, the Applicant was therefore more than 1 month 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.

12.In the Applicant’s case, a delay of more than 1 month must be considered as substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day of 3 March 2023 to her last reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.    

13.As for the merits, if any, of her intended application, all those grounds put forth by the Applicant as noted above are just some vague and bare assertions of her containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaboration as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or how did the Board fail to rely on relevant COI in assessing her claim, or what relevancy were State Acquiescence or police corruption or incompetency of the administration in her home country to the Applicant’s case when the factual basis of even her own case at the highest was of some private monetary disputes between her and her creditors without any state or official involvement at all. As such I do not find any of the Applicant’s proposed grounds reasonably arguable for her intended challenge, 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, nor do I find any merits in her intended application either.

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, the fact is that it has also been established by the Director in his 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, 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 their consideration and assessment of the Applicant’s claim.

17.Moreover, the Applicant has recently filed an affirmation requesting to withdraw her application as her family in Vietnam has already settled her debts with her creditors that her life is no longer at risk in her home country.  

18.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 now safe for her to return to her home country, I refuse to extend time and accordingly dismiss her leave application.

Dated the 18^th day of January 2024

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