BUI NGUYET HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2511/2019

[2022] HKCFI 3243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2511 OF 2019

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 the Applicant being absent in open court;

1.  Extension of time for the Applicant to apply for leave to apply for judicial review be granted;

2.  Leave to apply for judicial review be granted; and

3.  The Applicant shall issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A).

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 7 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application filed on 29 August 2019 is late[1]. This issue will be dealt with below.

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court held a hearing on 27 September 2022 and the applicant was absent. Her application is therefore dealt with on paper.

3.  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.

The applicant

4.  The applicant is a national of Vietnam. She entered Hong Kong illegally on 20 December 2015 and surrendered herself to the Immigration Department on 22 December 2015. On the date of surrender and on 3 February 2016, she lodged her non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor Hai.

5.  The applicant’s claimed fear of harm from Hai originated from the loans taken out by her from Hai in May 2012 and in July 2012. The purposes of the loan were for her farming and construction business. Yet, while she was able to repay the interest, by the end of 2013, she had defaulted the payments as her business failed. Since January 2014, Hai and his followers had been chasing her for repayments. In April 2014, she was attacked and injured by Hai and his followers. Out of fear, she escaped to her mom’s house. In the end of 2015, Hai visited her at her mother’s place and threatened to kill her. Eventually, the applicant fled to Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 15 December 2016 (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim 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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) Hai’s conducts did not exhibit any real intention to cause harm or even kill her [13]; (iii) state protection would be available to her [14]-[19]; and (iv) internal relocation was a viable alternative [20].

The Board’s Decision

8.  The applicant sought to appeal the Director’s Decision to the Board. She only filed her notice of appeal/petition to the Board on 17 February 2017, which was out of time. In her notice of appeal, she explained that the delay was due to the fact that she forgot to bring along the letter for submission [7]. The Board found that she failed to provide any documentary evidence for her explanation [11]. As a result, the Board refused to exercise its discretion to allow the late filing of the notice of appeal/petition [12]. In effect, the Board dismissed her appeal.

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

9.  The applicant has filed Form 86 dated 29 August 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

11.  As mentioned in paragraph 1, the applicant’s application is seriously 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 on 7 August 2018. Form 86 was filed on 29 August 2019. The delay is 1 year. 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.

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. 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).

13.  The question for the Court is whether the Board has committed any procedural error in its refusal to entertain the applicant’s application for extension of time to file her notice of appeal.

14.  The Board refused her application without considering the merits of her case as required by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019:

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

20. … …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

15.  Section 37ZT of the Ordinance has been amended in such a way that the Board does not have to consider the merits of the applicant’s case if her notice of appeal is late and is operative on 1 August 2021. But prior to the new legislation, the above authority should apply. The Board’s Decision is prior to the Court of Appeal decision. However, the legal principles should also apply to this case. The new legislation does not have retroactive effect.

16.  The applicant succeeds to show that she has realistic prospect of success in her proposed judicial review.

CONCLUSION

17.  I extend time for the applicant to apply for leave for judicial review of the Board’s Decision and leave is so granted. The applicant shall issue the originating summons within 14 days after the date of this Order in accordance with O.53, r.5(5) of the RHC.

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