PHAM THI LAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 191/2020

[2025] HKCFI 1585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 191 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “The Decision of the Torture Claims Appeal Board dated 13 December 2018”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 9 January 2020 and filed on 17 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board").

2.  The applicant stated a date of 14 February 2019 in Form 86 and it seems that the applicant was saying that the date of the Board’s decision was of that date.  However, there was no such decision of the Board with that date.  There was only one decision of the Board dated 13 December 2018 (the Board’s Decision) which dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 February 2017 (“the Director's Decision”).

3.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000191_2020_files/the_Board's_Decision.pdf

4.  By the Director’s Decision, the Director rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Likewise, by the Board’s Decision, the Board decided that the applicant did not make out her claims for non-refoulement protection on any of the applicable grounds under the USM and confirmed the Director's Decision accordingly.

Amendments

5.  The applicant named both the Immigration Department and the Board as putative respondents, and did not name any putative interested party in Form 86, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the name of the putative interested party.

7.  As aforesaid, the applicant stated a wrong date for the decision of the Board.  Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision.

Late application

8.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 

9.  However, the applicant filed Form 86 on 17 January 2020, which is more than 13 months after the Board’s Decision was made.  The applicant was hence late for more than 10 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

10.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(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.

11.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.  The delay was substantial with no explanation given.  There is also no merits of the intended judicial review as discussed below.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

13.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

14.  In sum, the applicant claimed for non-refoulement protection because she feared being harmed or killed by a moneylender from whom she and her husband had borrowed a loan of VND 300 million to start an aguacultural farm in Vietnam, but they could not repay the loan.

Grounds for judicial review

15.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

16.  The applicant did not advance any ground for her intended judicial review in Form 86.  In her supporting affirmation dated 17 January 2020, the applicant just stated “Without proper my toture [sic] claim appeal was rejected”.

Discussion

17.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

18.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 27 September 2018.  A notice of hearing was sent to the applicant one month before the hearing on 27 August 2018, but the applicant was absent at the hearing.

19.  Upon the applicant’s absence, the Board sent a letter to her on the day of the scheduled hearing to inform her that if she requested for a hearing, she must give explanation for her absence within 7 days from the date of the letter.  The applicant did not respond to the letter and the Board decided to determine the appeal on paper based on all the available evidence.

20.  The Board found the applicant’s evidence in relation to the loan lacking details. Significantly, the Board found that there was no record of any typhoon hitting Vietnam and causing destruction at the end of 2015, when the applicant alleged that their aquacultural farm was completely destroyed by typhoon and flood at that time.

21.  Even accepting the applicant’s story as true, the Board found that fear of harm arose only from a personal loan, which the applicant and her husband failed to repay.  There was no element of state acquiescence.  The pain or injury sustained did not reach a minimum level of severity.  The threats uttered were merely means to make the applicant repay the loan.  There was no real intention to severely harm or kill the applicant.

22.  In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to objective country of origin information (“COI”) for the applicant’s home country.  While noting the problem of corruption and the widespread of illegal loan sharks in Vietnam, there was evidence from reliable COI showing that the authorities had taken various initiatives in preventing corruption, cracking down loan sharks and further to enhance police efficiency.  The Board considered that the applicant should be able to obtain assistance from the police and authorities if she needed it.  The applicant’s assertion that the police would not help her was just the applicant’s speculation.  The applicant had never sought assistance from the police when she was in Vietnam.

23.  The Board also considered the viability of internal relocation for the applicant.  The Board found that the applicant’s reason for not being able to relocate as she could be found by the moneylender was mere speculation.  The applicant, as an able-bodied adult with 9 years of education, could safely relocate to other places within Vietnam without undue hardship.  The chances of the applicant being found by the moneylender in big cities like Ho Chi Minh City and Hanoi would be very low.  Hence, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

24.  The Board also considered the additional ground for the appeal, which the applicant asserted in her Notice of Appeal, ie the applicant was pregnant or has a child in Hong Kong.  The Board found that the assertion could not be proven as the applicant was absent for the Board’s hearing.  In any event, being pregnant or having a child in Hong Kong would not help to establish her non-refoulement claim.

25.  The finding of facts was solely within the ambit of the Board.  This court finds nothing wrong or improper in the way the Board reached its conclusion based on the evidence available to the Board.

26.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

27.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

28.  For reasons aforesaid and in the absence of any good reason for the substantial delay in making the Leave Application, this court refuses to extend the time for making the Leave Application.

29.  The Leave Application is therefore dismissed for being made out of time and having no merits.

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