Case Document

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HCAL 46/2021

[2024] HKCFI 2463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 46 OF 2021

BETWEEN
	Nguyen Thi Linh	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 16 July 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 37-year-old national of Vietnam who last entered Hong Kong illegally on 3 February 2019 and was arrested by police on 11 February 2019. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her abusive husband over their domestic disputes and/or by her fellow villagers who despised her as she is from the Tay minority and was a raped victim. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born of the Tay ethnic minority and raised in Duong Huu, Son Dong, Bac Giang, Vietnam. After leaving school she worked as a farmer, married her husband and raised a family with a son in her home village.

3.As her family was very poor without even any bathroom and being of the Tay minority, the Applicant was being looked down upon by her fellow villagers, and their hostilities towards her became worse since May 2017 after she was raped by an unknown man while taking a bath in a creek in the village, and thereafter she was also loathed by her husband who blamed her for the rape and accused her of becoming a whore after the incident to have formed all sorts of improper associations with other men in the village.

4.Soon her husband started to drink and when he was drunk he would become violent and abusive towards the Applicant by punching and kicking her that she suffered cuts and bruises all over her body.

5.To get away from such abuses the Applicant in October 2017 departed Vietnam for China, and from there she then sneaked into Hong Kong but was arrested by police on 20 October 2017, and was subsequently repatriated to Vietnam on 24 January 2018.

6.Upon returning to her home village but as she still feared of being abused by her husband and discriminated by her fellow villagers, the Applicant in late January 2019 again departed Vietnam for China, and from there she later sneaked into Hong Kong again, 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 22 August 2019 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 30 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”).

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 her husband or fellow villagers upon her return to Vietnam as low due to the absence of or 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 or of any serious or substantive discriminations against the Tay minority people in Vietnam other than isolated localized incidents, that in any event these were private disputes 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 97 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 anyone to locate her.

9.On 6 November 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 19 May 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 July 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s evidence of domestic disputes with her husband and fear of discriminations from her fellow villagers due to her Tay ethnics and being a raped victim but found no reliable evidence of any real intention of any of them to seriously harm or kill her, and that in any event these were private personal disputes between them without 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 alternatives for her to move safely to other parts 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.

11.On 12 January 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 her supporting affirmation of the same date in which she just stated that she does not agree with the decision as her life would still be in danger in her home country but without putting forward any proper ground for her intended challenge.

12.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 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.

13.As the last day of the three-month period for her to file her Form 86 fell on 16 October 2020, the Applicant was therefore more than 2 ½ 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.

14.In the Applicant’s case, a delay of more than 2 ½ months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and while I note that her Form 86 was somehow dated much earlier on 31 July 2020 which was well within the 3-months requirement but somehow she did not file it with the Court until some 5 months later on 13 January 2021. In the circumstances and in the absence of any explanation from the Applicant, I am unable to see any good or valid reason for her such serious delay.

15.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 merits in her intended application either.

16.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.

17.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 risks of harm in her claim if real are localized ones 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.

18.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.

19.Moreover, the Applicant recently on 22 July 2024 filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country.

20.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 view of her latest confirmation that it is safe for her to return to her home country, I refused to extend time and accordingly dismiss her leave application.

Dated the 17^th day of September 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 17 September 2024 Nguyen Thi Linh Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17 September 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 16462/19/11/20/V2379 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 693/19 (Formerly RBCZ 10471/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)