HOANG CONG THUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 864/2023

[2023] HKCFI 1873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 864 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 19 January 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). His application is late. I shall deal with this issue below.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, his application is dealt with on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Vietnam. He entered Hong Kong illegally on 16 March 2015. The next day, he surrendered to the Immigration Department. On the date of surrender, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the gangsters.

5.  In short, the applicant operated a transportation business in 2012. In late 2013, the gangsters visited the applicant and demanded him to cease the business. The applicant refused. The gangsters left but threatened to harm the applicant if he continued. From late 2013 to February 2015, the same group of gangsters constantly visited the applicant’s office and his ferries. When they got angry, they would destroy the properties therein. Yet, they were unable to find the applicant. As a result, he did not sustain any physical harms. The applicant reported the incidents to the police but it was of no avail. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 5 June 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the applicant’s claim lacked credibility [17]-[22]; (ii) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [23]-[25]; (iii) state protection would be available to him [26]-[35]; and (iv) internal relocation was also a viable option [36]-[44].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 30 November 2017, the Board conducted an oral hearing for his appeal.

9.  Having considered the evidence, the Board found that, after reviewing the immigration history in his passport, there were significant inconsistencies in the dates he claimed to have commenced and operated a business in Vietnam compared to the dates when he was actually in Vietnam [27]. It also found that the applicant’s alleged transportation business was implausible and his explanation in this regard were vague [28]-[30]. It noted that the applicant’s claim was not supported, and contradicted with the information stated in his passport [31]. Meanwhile, his answers to the Board’s inquiries about the gangsters’ visits were vague [32]-[34].

10.  For the aforesaid findings, the Board concluded that the applicant was not a credible witness and rejected his claim. His appeal was therefore dismissed.

Subsequent claim

11.  On 2 April 2023, the applicant wrote to request for making a subsequent non-refoulement claim. The basis of the applicant’s request was that he previously had a loan and private dispute with the triad members, and that the gangsters had reached out to his family and friends for his whereabouts [8].

12.  Having considered the applicant’s request, and the Director’s Decision as well as the Board’s Decision, the Director found that there was insufficient evidence to substantiate his subsequent claim; that his subsequent claim simply relied on hearsay information; and that it was mere speculation that the gangsters still had adverse interest towards him [12]. Taking his claim to the highest, there was no evidence to refute the finding of availability of state protection and internal relocation in the Director’s Decision [13]. As a result, on 16 June 2023, the Director refused the applicant’s request for making a subsequent non-refoulement claim (the “Director’s Decision on Subsequent Claim”).

13.  The applicant has not applied for leave for judicial review of the Director’s decision rejecting his request for a subsequent claim in this action.

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 5 June 2023 for leave to apply for judicial review of the Board’s Decision.

15.  In the applicant’s affirmation in support of his application, the applicant said that he disagreed with the Board’s Decision, so he wanted to file a judicial review against the Board. He said his life will be in danger if he returns to his country.

DISCUSSION

16.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 19 April 2018. The delay is more than 5 years and 2 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

20.  The Board had found that there was no evidence to show that the applicant will be subject to the risks as claimed if he returns to his country. There is no valid ground from the applicant to challenge the Board’s Decision.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I refuse extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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