VU SON THAI v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 573/2023 [2023] HKCFI 2925 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 573 OF 2023 BETWEEN Vu Son Thai Applicant and Torture Claims Appeal Board and Putative Respondent 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: Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 December 2022 be refused; and The application for leave to apply for Judicial Review be dismissed. Observations for the Applicant: The Applicant is a 34-year-old national of Vietnam who entered Hong Kong illegally on 8 May 2020 and was arrested by police on 10 June 2020. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim. The Applicant was born and raised in Quang Ninh Province, Vietnam. After leaving school he served in the Army for 2 years, and then worked as a hawker in his home district. In 2018 he started his own fish farm business by borrowing a loan from a local money-lender with monthly interest payments until discharge of the loan which the Applicant managed to do with income from his business. However, by late 2019 his business was severely affected by the Covid-19 pandemic that he started to default with his interest payments, and by early 2020 he had to close down his business, and when he was unable to repay his loan, his creditor made threats against him and sent men to his home to beat him with wooden sticks. As he was still unable to repay his loan, and when his creditor threatened to send his men to kill him, the Applicant became fearful for his life and fled to Mong Cai, and on 5 May 2020 he departed Vietnam for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 October 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 16 November 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”). 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 the Applicant other than to press him to repay his debts, 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 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 such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him. The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 June 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 December 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision. In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor over his unpaid debts but found no evidence of any real intention of his creditor to seriously harm or kill him other than to press him for repayment of his debts, and that in any event it was a private monetary dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam to negate such risk that his claim for non-refoulement protection failed on all applicable grounds. On 12 April 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 Adjudicator reached the decision wrongly in assessing the Applicant’s non-refoulement claim in that it was not reasonable or fair as the Board failed to recognize that the Applicant’s right to life must be protected by the criminal law from the killings that he may face if deported back to his home country; (2) That the Board failed to appreciate or give proper importance or weight to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim; (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 Adjudicator had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect him but failed to consider or give enough weight to such evidence and instead ruled otherwise against the Applicant; (5) That the Adjudicator was procedurally improper or unfair when assessing whether or not to accept explanations from the Applicant and unreasonably required him to respond to questions that he was not in a position to offer any response which is a clear case of unfair attitude shown by the Adjudicator which in itself is enough to render the decision void; (6) That the Board failed to attain high standard of fairness required by the Wednesbury test in failing to accept the Applicant’s assertions that corruption and incompetency of the administration in his country is still a very serious problem as various human rights organizations had complied reports which stated testaments to the Applicant’s assertions that the Board’s decision should be considered unreasonable in the scope of public law; and (7) That the Adjudicator made a ruling to dismiss the Applicant’s claim based on findings which the Adjudicator ought to allow the appeal and thus the decision is irrational. By then the Applicant was however already 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 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 3 month-period for him to file his Form 86 fell on 2 March 2023, the Applicant was therefore some 5 weeks 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. In the Applicant’s case, a delay of 5 weeks must be considered as substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his serious delay. As for the merits, if any, of his intended application, those grounds put forward by the Applicant as noted above are all just some vague and bare assertions of his containing a few key words or phrases but without any relevant or necessary 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 how did the Adjudicator act unreasonable or procedurally unfair or fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why is State Acquiescence relevant to his claim when even on the factual basis of his own case that it was a private monetary dispute between him and his creditor without any evidence of any official involvement at all. As such and as none of these assertions were elaborated with the relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or 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 correctly established by the Director in his 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 part of Vietnam, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 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. Moreover, the Applicant recently filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country, that he wants to do so as soon as possible, that he cancels his case of his own free will, and that he fully understands the consequences of his withdrawing his application. 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 his serious delay and in view of his latest confirmation that it is safe for him to return to his home country, I refuse to extend time and accordingly dismiss his leave application. Dated the 14th day of November 2023 (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 14 November 2023 Vu Son Thai 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 14 November 2023 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 19311 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1838/21 (formerly RBCZ 5000170/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1