Vu Van Dong v. Torture Claims Appeal Board

HCAL 2123/2023

[2024] HKCFI 768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2123 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 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 20 February 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 38-year-old national of Vietnam who entered Hong Kong illegally on 13 December 2020 and was arrested by police on 15 December 2020.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection 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 Phuong Cam Trung, Thanh Pho Cam Pha, Quang Ninh Province, Vietnam. After leaving school he worked in the seafood business, got married and raised a family with 2 children in his home district.

3.In late 2019 he and his wife decided to start a garment shop by borrowing a loan from a local money-lender to be repaid within one year and with monthly interests payable until full repayment of the loan.

4.For the first 6 months the Applicant and his wife managed to make the monthly interest payments, but one day in March 2020 they lost their garment business after their shop was burned down in an accident, and when he was unable to repay the loan, his creditor started to send men to beat him and his wife, and threatened to kill them if the loan was not repaid soon.

5.Fearing for their life, the Applicant and his wife then fled from their home district for Hanoi and then Mong Cai, and when they later heard that the creditor had sent men to look for them everywhere, they felt it was no longer safe to remain in Vietnam, and so in December 2020 they departed for China, and from there they later sneaked into Hong Kong, and upon his subsequent arrest by the police the Applicant then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 October 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 31 December 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 of 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 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 his home district in large cities such as Hanoi or Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

8.On 14 January 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 4 January 2023 before the Board or subsequently to provide any response or explanation for his absence that the Board did not schedule any further hearing and proceeded to deal with his appeal on paper, and on 20 February 2023 dismissed his appeal and confirmed the Director’s decision.

9.In its decision the Board found the Applicant’s claimed risk of harm from his creditor arose from what was essentially a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam if resorted to as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 27 November 2023 the Applicant filed his 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 Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response; and

(6) That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.     

11.By then the Applicant was however out of time with his 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.As the last day of the three-month period for him to file his form 86 fell on 20 May 2023, the Applicant was therefore some 6 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 6 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as he also failed to attend the hearing of his application without any explanation, I am unable to see any good or valid reason or justification for his such serious delay.      

14.As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some broad and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was a private dispute between him and  his creditor over his outstanding debts only without any official involvement or political element that there is simply no basis for such complaint. As such, and as the Applicant also subsequently failed to attend the scheduled hearing of his application without explanation so as to provide any proper elaboration or any relevant particulars or specifics for his proposed grounds, I do not find any of them reasonably arguable for his intended challenge 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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his 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.                

17.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 Applicant’s claim.

18.For all these reasons that 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 such serious delay, I accordingly refuse to extend time and dismiss his leave application.

Dated the 14^th day of March 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