PHAM THI THUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1263/2018

[2021] HKCFI 639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1263 OF 2018

 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.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 4 August 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  The application is more than three months after the date of the Board’s Decision and is therefore late. I shall deal with this issue below.

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

3.  The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

The applicant

4.  The applicant is a Vietnamese national. She came to Hong Kong illegally on 6 December 2012 and was arrested by police on 17 January 2014.  She lodged her non-refoulement claim with the Immigration Department by a letter of 27 August 2014.

5.  The applicant claimed that, if refouled, she would be harmed or killed by his creditor Mr. Huy Bo and members of the triad society.  In 2009, she borrowed a loan from Mr. Huy for illegal bookmaking business. At the end of 2009, she was unable to pay interest on time.  Mr. Huy and his followers came to her to demand payment.  They threatened to kill her and her family.  Mr. Huy asked her to traffic dangerous drugs for him for repayment.  She promised him on the pretext, but planned to leave Vietnam and so she did.  Details of the incidents can be found in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

6.  The Director considered her application in relation to the following risks:

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

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 27 January 2015 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of harm if she returned to Vietnam was low [13]; that state protection was available to her [15] and that internal relocation was an option open to her [19].  By Notice of Further Decision dated 14 March 2017 (“the Director’s Further Decision”), the Director rejected the applicant’s claim on BOR 2 risk for the reason that she was unable to establish a personal and real risk of right to life if she returned to Vietnam. [6]

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and Further Decision. She attended the hearings on 24 May 2016 and 26 May 2017.

9.  The Board rejected her appeal and confirmed the Director’s Decision and Further Decision.

10.  The Board considered the applicant’s evidence and found that:

(1)  for the reasons that her evidence was inconsistent and lack of coherence, her evidence was not accepted and the Board did not accept that she had borrowed a loan from Mr. Huy at all [34]

(2)  because of lack of factual basis, the Board rejected her claim on all risks in paragraph 6 above.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 4 July 2018 for leave to apply for judicial review of the Board’s Decision.  She said in her affirmation that it was unfair for the Board’s refusal to accept her evidence.  She had borrowed the loan for her illegal bookmaking business.  The business became bad because police came to raid her premises and many people who made the bets succeeded for no reason.  She had been pressed by Mr. Huy for money.  She fell from her motorbike and hurt herself.  Mr. Huy had threatened to kill her if she could not re-pay the money.

DISCUSSION

12.  As mentioned in paragraph 1 above, this application is late. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

“39. … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

I shall consider the merit of the case.

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  In a nutshell, the Board rejected her evidence on the facts in support of her claim.

14.  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.”

15.  The applicant’s grounds in support of her application are her opinions.  The Board had considered her evidence and given its reasons for disbelieving her evidence.  There is no specific reason why the Board should not come to its conclusions as it did.

16.  The Court does not find any error of law or procedural unfairness in the Board’s findings.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

18.  I therefore refuse to extend time for the applicant to apply for leave to apply for her intended judicial review.   Accordingly, I dismiss her 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