TRAN VAN HOANG v. TORTURE CLAIMS APPEAL BOARD

HCAL 612/2019

[2022] HKCFI 2869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 612 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review granted.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of Vietnam who entered Hong Kong illegally on 1 July 2014 and surrendered to the Immigration Department on 3 July 2014 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his father’s creditor over his father’s outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Tu Son Village, Kien Thuy County, Hai Phong City, Vietnam where he continued to reside with his parents after completing his secondary school education.

3.  In late 2011 the Applicant’s father left Vietnam for Hong Kong to avoid his creditor, a local money-lender, after failing to repay his loan, and subsequently died from his illness in Hong Kong where his ashes were later brought back to Vietnam in 2014.

4.  Shortly thereafter in April 2014, the money-lender and followers came to the Applicant to demand that he should repay his father’s debts, and when he was unable to do so, they then beat him and broke things in his house, and threatened to kill him next time if he still failed to do so.

5.  After the beating the Applicant fled from his home to hide in a friend’s place, and when he later heard from his mother that the money-lender and followers were looking for him everywhere, he therefore departed Vietnam on 28 June 2014 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 25 July 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his father’s creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to put pressure on him to repay his father’s debts, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to Vietnam, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 million people spread across a vast territory of more than 310,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man to move to other part of the country away from his home district in large cities where it would be difficult if not impossible for his father’s creditor to locate him.

8.  On 6 December 2016 the Director on his own initiative in writing invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 21 December 2016 also rejected the Applicant’s BOR 2 claim upon finding that he failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Vietnam.

9.  On 21 June 2018 the Applicant lodged two separate appeals to the Torture Claims Appeal Board (“Board”) against the respective decisions of the Director, but as both of his Notices of Appeal were filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, for which the Applicant gave essentially the same explanations in Section 5 of both of his Notice of appeal for their late filing, essentially that he did not know the language or the address of the Board or of anyone who could help him with his appeals until only recently when he came to meet a friend who was able to help him to complete and submit his Notices of Appeal to the Board, but by then he was already out of time with either appeal.

10.  It is also of note that in Section 2 of both of his Notices of Appeal, the Applicant gave the same grounds of appeal, essentially that he would face grave danger from his father’s creditor if he were to return to Vietnam.

11.  In pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of both Notices of Appeal of the Applicant, and by 2 separate decisions both dated 28 February 2019, the Board refused to allow the late filing of both Notices of Appeal of the Applicant upon finding that they were late by almost 2 years, that the Applicant’s explanations that he did not know the language or the Board’s address or of anyone who could help him with his appeal until much later were not supported by any evidence, and that there were no special circumstances which would make it unjust not to allow the late filing of his Notices of Appeal.

12.  On 5 March 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decisions, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim as before that he cannot go back to his home country where his life would still be in danger without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

13.  Nevertheless, given the serious implication of the Board’s decisions in denying the Applicant’s right to the second-tier screening process of his non-refoulement claim, the Court will adopt an enhanced standard in scrutinizing the reasons of the Board’s decisions in refusing to allow the late filing of the Applicant’s appeals.

14.  As noted above, the Board in both of its decisions gave the same reasons for its refusal, as it so stated as follows:

“10. The statutory regime which governs late filing is strict and the Applicant has a duty to establish the claim – to that end he or she must comply with the time limits prescribed in Section 37ZA(1)(b) of the Ordinance, which provides that …

11. Paragraph 8.4 of the Petition Guide effectively mirror section 37ZA(1)(b) of the Ordinance in its entirety in that the Applicant is also required to comply with the requirements, procedures and conditions (including any time limits) prescribed by the Petition Guide or required or specified by the Adjudicator.

12. Given the strict regime and the corresponding paragraph of the Petition Guide governing late filing it matters not how long the delay is, the Applicant is still required to establish the special circumstances which would make unjust a refusal to allow the late filing.

13. In Section 5 of the Notice of Petition, the Applicant alleged his late filing is because “he did not know the language and the way … “. However, it is regretted that he did not file any evidence to support his allegation.

14. There are no other matters known to me or revealed by the factual basis of the Applicant’s claim, which might amount to special circumstances, which would make it unjust not to allow the late filing of the Appeal/petition.

15. Accordingly I rejected the application.”

15.  It seems from the above that the Board rejected the Applicant’s explanations of not knowing the language or the Board’s address and of anyone who could help him with his appeals for the sole reason that he did not file any supporting evidence, but even putting aside the question of what sort of evidence that the Applicant would need to support any of his such explanation, it is clear to me that the Board should in the absence of such evidence still have to make its findings as to such explanations, and to give reasons why they were not accepted for the Applicant’s late filing, or why they would not amount to any special circumstances that might make it unjust not to allow the late filing of his Notice of Appeal in either cases.

16.  Furthermore, it seems to me that the Board in arriving at its decisions to refuse the late filing of both of the Applicant’s Notice of Appeal also failed to consider or take account of the merits of the appeals as part of the relevant matters of fact within its knowledge under Section 37ZT (2)(b) of the Ordinance, as so held by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, and in Re Qasim Ali [2019] HKCA 430, when Lisa Wong J in giving the judgment of the Court in the latter elaborated as follows:

“23. … even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

17.  In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of both decisions of the Board is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan supra, and I therefore grant leave to the Applicant to do so on the basis of the grounds as stated above in [15]-[16].

18.  Accordingly, the Applicant shall file and issue an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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