Nguyen Ngoc Minh v. Torture Claims Appeal Board
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HCAL 2104/2019 [2025] HKCFI 3506 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2104 OF 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 62-year-old national of Vietnam who entered Hong Kong illegally on 25 June 2015 and surrendered to the Immigration Department on 30 June 2015 when 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 fruits supplier over the money owed for the goods supplied to him and/or by his wife’s creditor over her outstanding debts. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Hai Phong, Vietnam. After leaving school he worked as a transportation worker, married his wife and raised a family with a son in his home district. 3.In 2000, he and his wife started selling fruits in a stall in the market with the help of a loan borrowed by his wife from a local money-lender repayable by monthly instalments with interest which they managed to make from their hawking business, and for their goods the Applicant obtained from a local supplier by credit which he would settle by the end of each month. 4.However, as their business did not fare well, and when they started to default with their payments for their goods or his wife’s debts in 2008, the money-lender and the supplier would send men to threaten them, and after his wife was beaten severely by those men sent by her creditor on one occasion in 2014, and fearing that they would come after him too, the Applicant hid in a friend’s place before fleeing to Ho Chi Minh City to take shelter in his uncle’s place, and in June 2015 he departed Vietnam for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 5.By a Notice of Decision dated 28 April 2017 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”). 6.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 supplier or his wife’s creditor and their 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 either of them to seriously harm or kill him other than to press him to repay the money owed to them, that in any event these were private monetary disputes between them only 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 95 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 his home district in large cities where it would be difficult if not impossible for anyone to locate him. 7.On 12 May 2017, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with it in his absence and on papers based on the materials and information provided earlier by the Applicant to the Director and available in the hearing bundle before the Board. On 4 October 2018, his appeal was dismissed by the Board which also confirmed the Director’s decision. 8.In its decision[1], the Board accepted the Applicant’s claim of fear of harm from his supplier and his wife’s creditor over the money they owed from them but found no reliable evidence of any real intention of either of them to seriously harm or kill him other than to press him to repay those debts, and that in any event these were private monetary disputes between them only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam 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. 9.On 23 July 2019, 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 his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 10.By then the Applicant was also 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. 11.As the last day of the three-month period for him to file his Form 86 fell on 4 January 2019, the Applicant was therefore more than 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. 12.In the Applicant’s case, a delay of more than 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 the record shows that the decision was sent on the same day of 4 October 2018 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay. 13.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Board, I do not find any merits in his 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 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. 16.In the premise, 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. 17.For all these reasons, 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 his serious delay, I refuse to extend time and accordingly dismiss his leave application. Dated the 19th day of August 2025
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 |