Case Detail

HCAL 149/2019

[2024] HKCFI 1754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 149 OF 2019

_____________

BETWEEN
	DANG THUY TRINH	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	Putative
		Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative
		Interested Party

_____________

Before:

Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:	27 June 2024
Date of Decision:	11 July 2024

_____________

D E C I S I O N

_____________

1. On 24 November 2021 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding that none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application.

2. The Applicant now by a summons issued on 20 May 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file her appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 8 December 2021, and hence she was some 2 years 5 months late with her intended appeal.

3. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346.

4. In the Applicant’s case, a delay of 2 years 5 months must be considered as extremely substantial and inordinate, for which she first explained in her affirmation that she never received the decision in the mail, and that it was only much later when she was informed by her immigration officer of the decision, but by then she was already out of time with her intended appeal.

5. At the hearing of her summons the Applicant then gave a different explanation for her delay in that 2 years ago she had just given birth to her child and had been too busy taking care of her new born baby that she could not find time to proceed with her intended appeal until now.

6. The court record shows that the decision was sent on the same day of 24 November 2021 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any relevant details or reliable evidence to corroborate either of her bare assertions, I am not satisfied that the Applicant has provided any good or valid reason for her such serious delay.

7. More importantly, the Applicant also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in her summons or her affirmation, nor was she able to do so at the hearing of her application. As such, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in her intended appeal.

8. In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal by the Applicant. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.

(Bruno Chan)
Deputy High Court Judge

The Applicant appeared in person.

HCAL 149/2019

[2021] HKCFI 3550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 149 of 2019

____________________

BETWEEN
	Dang Thuy Trinh	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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The Applicant is a 37-year-old national of Vietnam who entered Hong Kong illegally on 15 June 2012 and was arrested by police on 20 June 2012 for the offences of overstaying and thefts for which she was subsequently convicted and sentenced to prison for 15 months. Upon her discharge from prison and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditors over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2. The Applicant was born and raised in Le Chan County, Hai Phong City, Vietnam. After leaving school she married her husband, but when their relationship did not fare well, the Applicant started to indulge in drugs which she bought from a pair of local drug dealers, and when she ran out of money for purchasing drugs, she would borrow money from those drug dealers, and when she was unable to repay them, she was beaten by them and was forced to steal things from shops for them as part of her repayments, for which she had been arrested by police twice and sent to prison.

3. After her discharge from prison for her second conviction, her creditors continued to press her for repayment of her debts or else to continue to steal for them, but as the Applicant did not want to be arrested by police again, and in order to avoid the threats from her creditors, she therefore departed Vietnam on 13 June 2012 for China, and from there she later sneaked into Hong Kong, 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 30 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4. By a Notice of Decision dated 22 November 2016 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”).

5. 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 creditors upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that she had already served her sentences for the offences of theft that there is no reason for her creditors or the authorities to have any further adverse interest in her, that in any event her problems with her creditors were private monetary disputes 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 part of Vietnam away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditors to locate her.

6. The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 2 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7. In its decision the Board regarded the Applicant’s evidence about her claimed fear of harm from her creditors as vague and contradictory that it doubted the credibility of her claim, but found in any event that her problems with her creditors were private monetary disputes without any official involvement that state/police protection would be available to her upon her return to Vietnam as well as reasonable internal relocation for her to safely move to other areas away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

8. On 16 January 2019 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, and in her supporting affirmation of the same date she merely repeated her claim of being killed by her creditors if refouled to Vietnam but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. 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 reasonably arguable basis for her intended challenge.

9. 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.

10. 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 her claim is a localized one 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.

11. 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.

12. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 24^th day of November 2021.

(Chasel Man)
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

Notesfor 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 24^th November 2021 Dang Thuy Trinh 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 24^th November 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 5418/16/12/65/V693 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2251/16 (Formerly RBCZ 3000521/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

DANG THUY TRINH v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

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	consideration of the documents only; or
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