NGUYEN XUAN HUU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2533/2024

[2025] HKCFI 936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2533 OF 2024

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 27 November 2024 of the Torture Claims Appeal Board (“the Board’s Decision), which disallowed him to file her notice of appeal out of time.

2.  The applicant’s non-refoulement claim was dismissed by the Director of Immigation (“the Director”) by a Notice of Decision dated 12 October 2021 (“the Director’s Decision”). Under section 37ZS of the Immigration Ordinance, Cap.115 (“the Ordinance”), he has 14 days to file the notice of appeal[1]. According to the Board, time for his appeal expired on 29 October 2021, and the applicant filed the notice of appeal on 12 July 2024. [7] The applicant is late for more than two and a half years.

3.  The applicant did not request an oral hearing. I shall deal with his application on the papers.

4.  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.

5.  I shall state the brief background of the applicant’s case and discuss the Board’s reasons for its decisions.

The applicant

6.  The applicant, aged 49, is a national of Vietnam. He was arrested by police and referred to the Immigration Department on 25 May 2021. He admitted that he entered Hong Kong illegally on 16 May 2021. By written representation, he lodged non-refoulement claim, which the Director rejected for not being substantiated.

7.  According to the applicant, he had borrowed two loans from two loan sharks for the business of a restaurant and pigs rearing. He was unable to repay because his businesses failed. The loan sharks had sent people with weapons of knife and iron rod to his premises. As he was unable to repay the loans, they hit him with those weapons, causing injuries to his body, for which he had to receive medical treatment and it took about one month to recover. The loan sharks had warned him that if he was unable to repay the loans, they would kill him. Details of his story are set out in the Notice of Decision dated 12 October 2021 (“the Director’s Decision”).

The Director’s Decision

8.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the alleged risks of being harmed or killed by the loan sharks if he returns to Vietnam is very low; (ii) state protection will be available; and (iii) internal relocation is viable. [11]-[23]

10.  The applicant appealed to the Board. However, he was late in filing the notice of appeal.

The Board’s Decision

11.  The Board considered the applicant’s application for late filing of the notice of appeal.

12.  The applicant had, in section 5 of the notice of appeal, set out his reasons for being late. He said that he was detained in prison, so he was unable to proactively submit the appeal on time. He does not understand English and he did not know how to fill the notice of appeal.

13.  The Board took the view that its discretion to allow late filing is provided under section 37ZT of the Ordinance, which provides, inter alia:

“37ZT.Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)”

14.  The Board did not accept the applicant’s explanation for being late in filing the notice of appeal for reasons as follows:

“8. … … The Decision was given to the legal representative appointed by the Duty Lawyer Services (“DLS”) which received the same on behalf of the Appellant. There is no evidence to show that there is any delay on the part of the Director in sending the Decision to the Appellant. The appellant did not claim that he did not receive the Decision.”

15.  The Board further held that even if the applicant was being detained, he did not ask for assistance for filing the notice of appeal. He has failed to submit any evidence in support to satisfy the Board that he had exercised due diligence to file the notice of appeal within the prescribed period or he had failed to do so under circumstances beyond his control.[9] The Board held that it had no basis on which to exercise any statutory discretion to extend the time limit. [10]

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

16.  The applicant has filed Form 86 dated 18 December 2024 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant did not raise any specific reasons to challenge the Board’s Decision.

DISCUSSION

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

20.  The Court takes the view that the Board had appropriately applied the relevant law to the applicant’s application for filing the notice of appeal out of time.

21.  The applicant has raised no valid ground to challenge the Board’s Decision.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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