DOAN TRUNG KIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1349 /2021

[2022] HKCFI 1923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1349 of 2021

Application for Leave to Apply for Judicial Review

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 the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 27 August 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 February 2021 (the “Notice”).  

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1].  For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also. 

3.  The Applicant is a Vietnamese national, now aged 31.   He entered Hong Kong on 11 July 2020 illegally.  He was arrested by the police on 13 July 2020 and raised a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. By the said Notice, the Director rejected his claims under all four applicable grounds.

4.  The Applicant disagreed with the decision in the Notice but did not appeal to the Board within 14 days of service of the Notice on him as he was advised in the Notice.  He filed his Notice of Appeal (“NOA”) to the Board on 30 July 2021[6], one day before the commencement of the Immigration Amendment Ordinance 2021.  Allowing for two days for delivery of the Notice, his NOA was four months and twenty-six days out of time.  By its Decision dated 27 August 2021, the Board refused his application for late filing of his NOA.  On 1 September 2021, he applied for leave to apply for judicial review of the Decision of the Board. 

5.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claimed that he will be killed by a moneylender (“Moneylender”) upon his return to Vietnam because of his inability to repay a debt owed to the Moneylender.

7.  The Applicant was born and raised in Haiphong, Vietnam.  His family used to live in Vietnam.  He received 11 year of education and has 13 years of work experience in agriculture and welding.

8.  In around February or March 2018, the Applicant started gambling on the Internet and he borrowed VND 300 million (around HK$100,000) from the Moneylender.  Under the terms of the loan, he was required to repay the loan and interest by three monthly instalments of VND150 million each starting from the month after the initiation of the loan.

9.  The Applicant was unable to make repayment since mid-2018 and the Moneylender sent men to collect the debt.  The Applicant fled to Tinh Quang Ninh to avoid the Moneylender and his men.  While he was hiding in Tinh Quang Ninh, he learnt from his family that the Moneylender’s men harassed his family but they did not harm them.

10.  On 30 June 2020, that was about 2 years since the day he had defaulted on the loan, the Applicant went back to his hometown to visit his family and to pay tribute to his ancestors.  The Moneylender discovered his return and brought four or five men to his home.  The Moneylender demanded VND 1 billion as repayment of principal and interest.  When the Applicant said he could not pay, they beat him in the presence of his parents and siblings.  The Moneylender warned the Applicant that he would be killed if he failed to repay.  The Applicant suffered bruises all over his body but he did not seek any treatment.

11.  The Applicant believed the Moneylender was a fierce person as he had witnessed the Moneylender’s men publicly attacking a debtor with a sabre.  On the advice of his friend, he fled to Hong Kong on 11 July 2020.

12.  After arriving in Hong Kong, he learnt from his family that the Moneylender frequently went to his home to demand repayment and harassed his family.  The Moneylender threatened to kill the Applicant if he did not make repayment, but had never harmed his family. The Applicant had never reported the harassment to the Vietnamese police.

The Applicant’s explanation for the late filing

13.  The Applicant acknowledged in section 5 of the NOA that he received the Notice dated 17 February 2021 and was advised that he had to raise his appeal on or before 3 March 2021.  However, as he did not have enough to eat, he went to steal food and was arrested and put in jail.  He lost his appeal documents and his contact with his relatives and friends.  In addition, he is not conversant in Chinese. It was only until recently (ie at the time of filing of the NOA) that he was able to re-establish contacts with his friends to recover the appeal documents and able to enlist the help of the welfare officer in the prison to facilitate his appeal. 

The finding of the Board

14.  The Board noted that the NOA was filed one day before the commencement of the Immigration (Amendment) Ordinance 2021 and was aware that the previous version of the relevant provisions of the Immigration Ordinance, namely, sections 37ZS and 37ZT was applicable.  One significant effect of the amendment is to abolish the need for the Board to take into account merits of the intended appeal as one of the relevant matters of fact within its knowledge in deciding whether to allow the late filing.  The Board referred to the correct and applicable version of section 37ZT(2)(a) and (b) of the Immigration Ordinance for the list of matters it may take into account in deciding whether to allow the late filing.  These are:

(i)    the statement of reasons stated in the application for late filing of the NOA;

(ii)   any accompanying documentary evidence relied in support of those reasons; and

(iii)  any other relevant matters of fact within the knowledge of the Board.

It also referred to Re Asghar Ibrar[7] as to the factors to be considered in deciding whether there are special circumstances which would make it unjust not to allow the late filing; and to Re Madbar Abdul Salam[8] on the need to consider merits of the intended appeal.

15.  The Board was aware of the availability of welfare officers in prison to help prisoners to deal with their appeals.  The Applicant’s ability to file the second version of his NOA within ten days of the request by the secretariat shows that language assistance was available while he was in custody to deal with his appeal matters.  

16.  The Applicant did not explain the steps he had taken in pursuing his appeal, whether he had sought help from the welfare officer to file his NOA soon after he was imprisoned, and whether there was delay by the welfare officer in giving him assistance.  The Board considered the Applicant’s bare assertion that he was imprisoned without details or proof of the underlying reason for the delay insufficient.  Also, he could not find any matters of fact within its knowledge which may be relevant for the delay in filing the NOA.  By way of contrast, a delay of twelve days for an applicant in prison custody was considered reasonable and acceptable in Re Asghar Ibrar.  The Board did not consider the Applicant’s explanation reasonable or acceptable for a delay of four months and twenty-six days. 

17.  As for merits of the appeal, the Board found it inherently implausible that the Moneylender would have agreed to extend a loan of VND 300 million to the Applicant for gambling debt, given that as a welder he only earned a few million VND per month.  Furthermore, the attack by the Moneylender was a one-off attack for which the Applicant did not find it necessary to seek medical attention.  The Board found the level of harm the Applicant suffered did not attain the minimum level of severity.  If found the attack was the result of a private dispute between the Applicant and the Moneylender in which no state agent was involved.  The Vietnamese authority also had no knowledge of the attack as the Applicant had not reported his plight to the authorities.  Accordingly, the Board concluded that his case was unmeritorious.

18.  For the above reasons, the Board refused to allow the late filing.

The applicable legal principles          

19.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[9].

Grounds for judicial review

20.  The Applicant did not state his ground of application in his Form 86.  In his supporting affirmation, he advanced the following grounds:

“I do not agree with the Decision of Torture Claims Appeal Board. So I want to file a judicial review against them. Because I can not return back now. My life will be danger over there. So I hope to submit this petition to the court to judicial review.”

In essence, he sought judicial review because he disagreed with the Board’s Decision that it would be safe for him to return to Vietnam.  In effect, he is seeking to challenge the Board’s finding of fact under the pretext of judicial review.  These are not proper grounds for judicial review.

Discussion

21.  As mentioned above, the primary decision-makers in a claim for non-refoulement protection are the Director and the Board who alone assess the evidence and make finding of fact.  The function of the court in a judicial review is to scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. In the absence of any specific ground of application, the court could only scrutinise the Board’s Decision for these vitiating elements.

22.  The Board referred to the correct version of section 37ZT(2) of the Immigration Ordinance which mandates the Board when deciding whether to allow the late filing to take into account (i) the length of the delay; (ii) the explanation for the delay; and (iii) any other relevant matters of fact within the knowledge of the Board which would make it unjust not to allow the late filing. The Board’s finding that the Applicant was four months and twenty-six days late is incontrovertible.  The delay was serious and significant in the context of a fourteen days’ period of appeal.   His explanation for the delay was that he was in prison custody and has no language assistance.  This was rejected by the Board for good reasons, see paragraph 15 and 16.

23.  The Board considered merits of the appeal as it was obliged to under the previous version of the Ordinance. It gave brief reasons why it found the intended appeal unmeritorious; namely, the Applicant’s account is inherently implausible; the ill-treatment he suffered did not attain the minimum level of severity as required by the law to qualify for non-refoulement protection; the ill-treatment arose as a result of a monetary dispute between private individual; and no state agents were involved.  Applying the law applicable to non-refoulement protection under the four applicable grounds under the USM to the facts in this case, the Board found the Applicant not entitled to protection and hence his intended appeal is unmeritorious.

24.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the application for late filing under section 37ZT of the Immigration Ordinance; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Applicant’s delay was serious and significant.  He failed to show he had exercised all due diligence to file the notice within time because of circumstances beyond his control.  The delay was occasioned by his own omission.  There were no special circumstances within the knowledge of the Board which would make it unjust not to allow the late filing.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  The Board could detect no error of law or procedural unfairness in the process of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault. There were no vitiating elements in the Decision.  The Applicant advanced no arguable grounds in support of the intended judicial review.  There is no realistic prospect of success in the proposed judicial review. Accordingly, leave to apply for judicial review was refused.

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

[1] [2018] HKCA 549

[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] The first version the NOA was completed in Vietnamese with section 5, which is the section for the Applicant to state his reasons for the late filing, left blank.  Being unfamiliar with the Vietnamese language, the staff of the secretariat of the Board requested the Applicant to file another NOA with section 5 completed.  The Applicant filed a second version of the NOA on 9 August 2021 with section 5 completed in Chinese.  When the English translation of the first version of the NOA became available, it transpired that the Applicant had in fact stated his reasons for the late filing in the first version of the NOA.  The explanation therein is similar to that given in the second version.  Hence, in fairness to the Applicant, the Board accepted that the NOA was filed on 30 July 2012.

[7] HCAL 9/2016

[8] CACV 57/2019

[9] [2018] HKCA 524 at para 14(1)