DINH KHAC KIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1377/2024

[2025] HKCFI 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1377 of 2024

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr. Dinh Khac Kien (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 13 February 2018 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 October 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

2.  The DOI Decision was in Chinese while the Board’s Decision was in English. The Applicant completed the Form 86 herein (“Form 86”) in English without interpretation. He also filed his English Supporting Affirmation (“Supporting Affirmation”) without the assistance of an interpreter. As the Applicant made this application by English documents, I decide to issue this decision in English.

Background of the Applicant and the Claim

3.  The Applicant is a Vietnamese born on 2 October 1984. He received 10 years of education and worked as fisherman and driver from 2001 to 2010.

4.  In early 2010, the Applicant borrowed 500 million Vietnamese Dong (“VND”) (“Loan”) from a moneylender (“Creditor”). The monthly interest payable was 5% of the Loan with no fixed term for the repayment of the principal.

5.  After taking out the Loan, the Applicant started his karaoke nightclub business (“Karaoke”). From early 2010 to end of 2014, he paid the monthly interest punctually.

6.  Starting from November 2014, the business of the Karaoke dropped and the Applicant was unable to pay interest to the Creditor on time. The Creditor threatened to beat him up if he failed to pay. On one occasion, the Creditor went to the Applicant’s house with 2 followers armed with wooden sticks. They vandalized his properties and beat him for about 4-5 minutes. They threatened to beat him up again if he still failed to pay. The Applicant did not make a report to the police. He treated his back injuries himself by applying medicated ointment on his back. He recovered in about a month.

7.  He went to Mong Cai after the attack to avoid the Creditor. On 7 April 2015, the Applicant left Vietnam for China with his passport. From China, he sneaked into Hong Kong on 12 April 2015.

8.  The Applicant claimed that the Creditor would harm or kill him upon his return to Vietnam because of his inability to repay the Loan.

9.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

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

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”) (“persecution risk”).

10.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”).

11.  The Applicant did not attend the hearing for the Appeal before the Board scheduled for 24 January 2018 (“Board Hearing”). Notice of the Board’s intention to determine the Appeal in the Applicant’s absence (“Notice”) was served on him by post at his last reported address on 24 January 2018. The Applicant did not give any written explanation to the Board within 7 days after the Notice was served on him. The Board therefore determined the Appeal in the Applicant’s absence pursuant to Section 15 of Schedule 1A of the Ordinance.

12.  By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

13.  On 20 August 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board and the Director as the proposed respondents.

Legal principles applicable to judicial review

14.  In a judicial review, the court does not step into the shoes of the decision makers.

15.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

16.  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 reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

17.  On 20 August 2024, the Applicant filed the Form 86 and the Supporting Affirmation.

18.  Order 53 rule 4(1) of the Rules of the High Court (“RHC”) provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

19.  The Board’s Decision was issued on 13 February 2018. As such, the Applicant should have filed the Form 86 latest on 14 May 2018 (13 May 2018 being Sunday). The Form 86 was filed on 20 August 2024 and it was late.

20.  The Applicant was late for more than 6 years and 3 months in filing the Form 86. This is a very substantial and inordinate delay. The Applicant has not applied for time extension to file the Form 86. No explanation had been provided by the Applicant in the Supporting Affirmation for his late filing of the Form 86. In the Po Fun Chan case (supra), Litton NPJ opined at §52 that where an application was made many months after the time limit mentioned in order 53 rule 4 of the RHC, the judge was entitled to refuse leave, however strong the complaint might otherwise be. As such, this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

21.  For the sake of good order and completeness, I shall also consider the merits of the Applicant’s application before deciding on how to dispose of the matter.

22.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

23.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision and a statement (“Statement”) setting out the grounds for his intended judicial review application as follows:

(a)  the DOI Decision and the Board’s Decision were not reasonable and fair;

(b)  the Board failed to give him sufficient time and chance to arrange relevant evidence for the Claim as well as the Appeal;

(c)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case;

(d)  the Director failed to consider or give enough weight to country of origin information (“COI”) which supported the version that the police in his country would not be able to protect him and the corruption and incompetency of the administration in his country was still a very serious problem; and

(e)  the Director had failed to attain the high standard of fairness required by the Wednesbury test in the DOI Decision.

24.  In the Statement, the Applicant raised various complaints against the decision of the Director. This is an application for leave for judicial review against the Board’s Decision, not the DOI Decision. Hearing before the Board for the appeal/petition was de novo. Errors (if any) made by the Director in the DOI Decision will not constitute ground(s) for applying for judicial review against the Board’s Decision.

25.  In any event, the aforesaid grounds advanced by the Applicant in the Statement were without particulars. They were only bare assertions.

26.  The Applicant complained that the Board did not allow sufficient time for him to arrange relevant evidence for the Claim and for the Appeal.

27.  The Applicant applied for non-refoulement protection by written representation dated 15 April 2015 and attended the screening interview with an Immigration Officer on 25 October 2017 (“Interview”). He had had more than 2.5 years before the Interview to arrange for his supporting evidence.

28.  The Director refused the Claim on 27 October 2017 by the DOI Decision. The Board Hearing was scheduled for 24 January 2018. The Applicant had about 3 months to prepare for the Board Hearing. In fact, the Applicant failed to attend the Board Hearing and the Board had to determine the Appeal in the Applicant’s absence pursuant to Section 15 of Schedule 1A of the Ordinance.

29.  I note that the Applicant had not produced any other supporting documents for the Claim to the Supporting Affirmation which was affirmed more than 6 years after the Board’s Decision.

30.  I see no merits in the Applicant’s grounds for his proposed judicial review. They are not reasonably arguable.

31.  The Applicant had attended the court hearing of 21 January 2025 and confirmed that he was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision. He stated that he had married a Hong Kong permanent resident and wished to stay in Hong Kong to take care of his wife.

32.  For reasons set out in §§44-51 of the Board’s Decision, the Board did not find the Applicant’s evidence credible. The Board was unable to place any weight on his evidence that he borrowed the Loan from the Creditor, and had been assaulted and threatened or otherwise ill-treated by the Creditor in Vietnam. The Board rejected the Applicant’s claim that he was indebted to the Creditor and that he had genuine fear of risk of harm if he were to return to Vietnam. There was no real chance that the Applicant would be harmed, or otherwise ill-treated, if he was refouled to Vietnam. State protection was also available to the Applicant, if he needed to resort to police or state protection. Internal relocation was both available and reasonable for the Applicant which would further negate the Applicant’s perceived risk.

33.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide particulars as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how the Board took into account irrelevant matters or failed to take into account relevant matters.

34.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

35.  The Board found that the Applicant had failed to show that there were substantial grounds for believing that he would be subjected to the torture risk, the BOR 3 risk or the persecution risk. The alleged ill-treatment suffered by the Applicant did not attain a minimum level of severity and there was no evidence to show that the Vietnamese authorities had been involved or had in any way instigated, or consented, or acquiesced, or failed and refused to conduct any investigation. The Applicant was not threatened or ill-treated in the past on account of any of the reasons referred to in Article 33 of the Refugees Convention. The Board also found that there was no risk of violation to the Applicant’s right to life under BOR 2 if he was to return to Vietnam. State protection was readily available and internal relocation was viable and reasonable to the Applicant.

36.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

37.  The Form 86 was filed out of time without leave of the court and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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