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

HCAL 1432/2018

[2021] HKCFI 957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1432 of 2018

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  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.

2.  The applicant applies for leave to apply for judicial review of the Decision dated 9 November 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). This application was filed on 20 July 2018 and is therefore late. I shall deal with this issue below.

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 through Shen Zhen, China on 22 August 2016. On the next day, she surrendered to the Immigration Department and lodged her non-refoulement claim.

5.  The applicant claimed that, if refouled, she would be harmed or killed by her creditors because she was unable to pay off her debt. She cohabited with a man and gave birth to three daughters. They have grown up. Two of them have married and live with their husbands. The youngest one is living with her family in Vietnam. Her cohabitee had left her. In August 2015, she borrowed 400 million Vietnamese currency from the creditors. The money was used for setting up her business of selling clothes. In October 2015, the creditors came with some people holding weapons to demand repayment of the debt. She was unable to do so. They threatened her that if she was unable to repay, they would smash her shop and even kill her. She immediately ran away. They smashed her shop. She hid herself and lived in her daughters’ homes or her own family. She was told that the creditors were looking for her. They did not harm her family. In August 2016, she decided to leave Vietnam for Hong Kong. Details of the incidents are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

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 9 June 2017 (“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 being harmed or killed if she returned to Vietnam was low [11]; that state protection would be available to her [17] and that internal relocation was an option open to her [22]. Based upon the finding of the facts, the Director rejected her claim on all the risks above.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. The Board decided to deal with the appeal on paper.

9.  The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)  There was no evidence that she was seriously harmed by the creditors. [31]

(2)  State protection would be available to her. [34]

(3)  Convention on Persecution risk does not apply to her case. [35]

(4)  BOR 3 risk does not apply to her case. [40]

(5)  BOR 2 risk does not apply to her case. [41]

(6)  Torture risk does not apply to her case. [45]

(7)  Internal relocation is an option open to her. [48]

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 20 July 2018 for leave to apply for judicial review of the Board’s Decision. She said in her affirmation that if she returned to Vietnam, she would face a genuine and substantial risk of being subjected to torture or even killed by her creditor and his men because she was unable to pay back the debt.

DISCUSSION

11.  As mentioned in paragraph 1 above, this application is late.

12.  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.

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.  Whether she can establish her case is a matter of fact to be determined by the Director and the Board. They had found against her. Her grounds in support of this application does not assist her.

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 refuse to extend time for her to make her application for leave to apply for judicial review of the Board’s 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