NGUYEN THI LOAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1368/2022

[2023] HKCFI 776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1368 of 2022

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 Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 March 2022 of the Director of Immigration (“the Director’s Subsequent Claim Decision”) rejecting her subsequent claim application. The application filed on 30 November 2022 is late[1]. This issue will be dealt with below.

2.  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 deals with her application on the papers.

The applicant

3.  The applicant is a national of Vietnam. She is the wife of a family of four, including her husband and two children. Before the Director and the Board, the applicant’s claim was assessed together with her family’s claim. The applicant and her family surrendered to the Immigration Department on 27 October 2014 and lodged their non-refoulement claims on 3 November 2014 and 19 November 2014 respectively. The basis of their claims was that, if refouled, they would be harmed or killed by Dung and Van.

4.  In brevity, the applicant’s husband borrowed a loan from Dung for his business in breeding and selling geoduck clams in 2012. However, in April 2013, a typhoon hit and destroyed her husband’s business. Upon knowing this news, Dung started pushing her husband for repayment of the loan. Originally, her husband could barely fulfil the monthly interest payments. However, since August 2014, he defaulted the repayments. He was threatened and assaulted twice by Dung and his followers in August 2014. Thereafter, in September 2014, her husband was taken to the public security force office. The chief officer was Van. Van attacked the applicant’s husband with wooden hammer, telling him that it was Van’s money that they borrowed. Out of fear, the applicant’s husband escaped to Hong Kong with the applicant and their children for protection. Details of their claims are set out at paragraph 6 of the Notice of Decision dated 20 June 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

5.  The Director considered their claims 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”).

6.  By way of the Director’s First Decision, the Director dismissed their claims on Torture risk, Persecution risk and BOR 3 risk. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [12]-[13]; (ii) state protection would be available to them [14]-[15]; and (iii) internal relocation was a viable option [16].

7.  For reasons set out in the Notice of Further Decision dated 1 December 2016, the Director rejected the claims of the applicant, and her children on the ground of BOR 2 risk[2] (the “Family’s BOR 2 Decision”). Thereafter, on 19 May 2017, the Director also rejected the husband’s claim on BOR 2 risk (the “Husband’s BOR 2 Decision”).

8.  The Director’s First Decision, the Family’s BOR 2 Decision and the Husband’s BOR 2 Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

9.  The applicant and her family appealed the Director’s Decisions to the Board. Originally the oral hearing for their appeals was scheduled to be on 13 June 2017 and was later adjourned to be on 10 August 2017. As they were out of time in taking out the notice of appeal/petition against the Family’s BOR 2 Decision, the Board determined preliminarily as to whether to allow the late filing [16]. Having considered the circumstances, the Board allowed their late filings [17]-[23].

10.  Before the Board, the applicant and her husband raised new claims. In that, the applicant’s husband stated that he was considered as a traitor by the Vietnamese authorities and he was denied household registration. Consequentially, he had to pay a higher tuition for their children’s schools. The applicant also stated that her husband would be arrested if refouled [33]. Meanwhile, the Board also took into account the news articles provided by the applicant and her husband [35]-[37]. In short, the applicant and her husband’s new claims before the Board was that, if refouled, the applicant and husband would be harmed or killed by Dung and Van, and that their children would be kidnapped for organ harvesting [38]. The applicant’s husband also claimed a fear of harm due to the authorities’ denial of his household registration [39].

11.  The Board considered all the evidence and the country of origin information (“COI”). It accepted the crux of the family’s claims, i.e., the dispute arising out of the outstanding loans [53]-[54]. However, it noted that the COI did not support their claims that the creditor would harm or kill them or even kidnap them for organ harvesting [55].

12.  The Board proceeded to elaborate the material defects of the family’s claim. It noted that the evidence of the applicant’s husband in relation to the calculation of the quantum of the loan greatly undermined his claim of a loan [59]-[62]. It also found that there was no evidence of a typhoon hitting Vietnam in April 2013, contrary to what was claimed by the applicant’s husband [63]-[66]. It also considered that the immigration history of the applicant’s husband, coming to Hong Kong previously for economic reasons, undermined his credibility [67]-[69]. Meanwhile, the denial of household registration was exaggerated as a hardship [70]-[71]. The applicant’s new claim that her husband would be arrested upon refoulement was found to be groundless [7]-[73].

13.  In light of the aforesaid findings, the Board rejected the family’s claims and dismissed their appeals.

The applicant’s subsequent claim application

14.  On 11 July 2018, the applicant and her children were repatriated back to Vietnam. In November 2021, the applicant entered Hong Kong illegally and was arrested by the police on 25 November 2021.

15.  On 29 December 2021, the applicant wrote to the Immigration Department seeking to make a subsequent non-refoulement claim application. On 17 January 2022, she provided additional information with the assistance of the Duty Lawyer Service to facilitate her subsequent claim.

16.  In that, the applicant stated that, after she returned to Vietnam, she worked in a gambling stall. However, due to her mistake on one occasion, she was unable to pay the dividends to the bet winner. Despite that she borrowed money from her relatives and from her employer to pay the bet winner, he still assigned his followers to threaten her. As she was also unable to repay the loan of her employer, she was also threatened. Out of fear, she fled to Hong Kong for protection.

17.  Having considered the applicant’s claim, the Director found that (i) the applicant’s claim was of similar nature as her previous claim; and (ii) the loan disputes remained private in nature without state involvement [10]. There is no evidence to show that the gambling stall and the bet winner are the state agents and the disputes are private disputes. In these premises, the applicant failed to demonstrate that there was a significant change of circumstance of her case, which, when considered together with her previous claim, would give her a realistic chance of success in her previous claim.

18.  As a result, by the Director’s Subsequent Claim Decision, the Director refused the applicant’s request to lodge the subsequent claim.

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

19.  The applicant has filed Form 86 dated 30 November 2022 for leave to apply for judicial review of the Director’s Subsequent Claim Decision.

20.  In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

21.  As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The deadline for her to file Form 86 is 25 June 2022. The delay is about 5 months. The delay is therefore serious and her application can be dismissed as she has not given any explanation for the delay. I shall, nevertheless, first consider the merits of the applicant’s case.

22.  The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his decision on the applicant’s subsequent claim application. The Court will not usurp the fact finding power vested in the Director. 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).

23.  The Court will bear in mind that the Director’s Subsequent Claim Decision should be examined with rigorous examination and anxious scrutiny.

24.  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.”

25.  The Director, for the reasons stated in paragraph 17, supra, found that the applicant has no good reason in support of her subsequent claim.

26.  The Court does not find any error of law or procedural unfairness in the Director’s Subsequent Claim Decision. The findings of the Director are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

28.  I refuse to extend time for the applicant to apply for leave for judicial review of the Director’s Subsequent Claim Decision. 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