NGUYEN VAN TAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1067/2018 [2021] HKCFI 1476 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1067 of 2018 BETWEEN Nguyen Van Tan 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; Order by Deputy High Court Judge Bruno Chan: extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 1 December 2017 refused; and the application for leave to apply for Judicial Review dismissed. Observations for the Applicant: The Applicant is a 26-year-old national of Vietnam who entered Hong Kong illegally on 10 July 2015 and surrendered to the Immigration Department on 13 July 2015 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim. The Applicant was born and raised in Xa Phurong Tu, Huyen Ung Hoa, Hanoi, Vietnam. After leaving school, he worked as a car repair worker in his home village. In September 2013 he borrowed a loan from the local money-lender for his gambling habit repayable within 2 years with monthly interest payments until full repayment of the loan. However, in late 2014 the Applicant lost his job and started to have difficulties repaying his loan, for which his creditor sent his men to make threats against him, and after an occasion in May 2015 when he was beaten by those men, the Applicant became fearful for his life, and on 7 July 2015 he departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 February 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). While being released on recognizance pending the determination of his claim, the Applicant was arrested by the police on 9 July 2016 for possession of a fake identity card for which he was subsequently convicted and sentenced to prison for 12 months. By a Notice of Decision dated 8 March 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”). In his decision the Director took into account 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 was no real intention of his creditor to seriously harm him other than to press to repay his loan, that 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”) shows that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 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 young man with working experience to move to other parts of Vietnam away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him. On 16 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 17 November 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 1 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director. In its decision the Board accepted the Applicant’s claim of threats from his creditor over his outstanding loan but found no evidence of official involvement in what was a private monetary dispute between the Applicant and his creditor that state/police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds. On 11 June 2018 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, and in his supporting affirmation of the same date he merely stated that the decision is unfair but without providing any particulars or elaboration as to how it is so or any proper ground for his intended challenge. By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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. As the last day of the three-month period for him to file his Form 86 fell on 1 March 2018, the Applicant was therefore more than 3 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 HKCA 393. In the Applicant’s case, a delay of more than 3 months must be considered as very substantial, for which he explained at the hearing that after receiving the Board’s decision, he did not know what to do and had had to seek legal assistance, but by the time he was able to do so, he was already out of time with his application. The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and as ignorance of the rules on legal procedures cannot be accepted as an excuse or reason for their non-compliances, I am not satisfied that the Applicant has provided a good reason for his delay. As for the merits, if any, of his intended application, as noted above, the Applicant did not put forward any proper ground for his intended challenge in his Form or supporting affirmation, and at the hearing he merely repeated his claim that his problem has not been resolved and that his life would still be in danger in his home country. As such 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 Applicant, I do not find any merits in his intended application. 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. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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. 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. 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 delay, I refuse to extend time and accordingly dismiss his leave application. Dated the 25th day of May 2021. (MAK Sze-ki) 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 his 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 25th May 2021 Nguyen Van Tan 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 25th May 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 6584/17/3/239/V1096 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 284/17 (Formerly RBCZ 12366/15) [T8S92] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1