DOAN THI NHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2401/2019

[2025] HKCFI 678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2401 of 2019

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;

1.   The Form 86 is amended on the court’s own motion; and

2.   The Leave Application be dismissed.

Introduction

1.  By prescribed Form 86 filed on 20 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”).

2.  In these proceedings, there are two decisions of the Director of Immigration (“Director”) respectively dated 26 August 2015 and 24 March 2017 ( respectively “Director’s 1^st and 2^nd Decisions”), and two decisions of the Board respectively dated 1 December 2016 and 11 April 2019 (respectively “Board’s 1^st and 2^nd Decisions”).  The Board’s 1^st and 2^nd Decisions respectively dismissed the Director’s 1^st and 2^nd Decisions rejecting the applicant’s non-refoulement claim.

3.  In the Form 86, the date of the subject order was stated to be “9-4-2019”.  It is believed that the date was erroneously dated, and it should have been referring to the Board’s 2^nd Decision.  Further, in the Form 86, the applicant named the Board and the Director as the proposed respondent(s) and stated the address of the Immigration Department as the proposed interested party.  As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion to reflect these amendments.

4.  As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Background

5.  The background as taken from the Director’s and the Board’s 1^st and 2^nd Decisions can be briefly stated as follows.

6.  The applicant is a national of Vietnam.  According to the “Immigration History” contained in the Director’s 1^st Decision, the applicant first came to Hong Kong as a visitor on 30 June 2002. Between her first arrival at Hong Kong and her third entry to Hong Kong on 9 February 2014, she had overstayed, and had been convicted of offences for theft and sentenced to imprisonment on each occasions.  She was repatriated to Vietnam twice respectively on 31 July 2002 and 21 September 2012.

7.  On 9 February 2014, the applicant again was arrested by police for theft, illegal remaining, and breach of deportation order.  The applicant lodged her non-refoulement claim on 8 and 9 April 2014 covering all applicable grounds other than BOR 2 risk^[1] – risk of torture^[2], BOR 3 risk^[3], and persecution risk^[4] under the USM.^[5]  The sentencing of her convicted offence and the prosecution of the other two charged offences were adjourned until the determination of the applicant’s non-refoulement claim.  The claim was based on her fear that she would be harmed or killed by the triad and arrested and tortured by police if she were refouled back to her country.

8.  The applicant claimed that after her separation from her husband, she opened a karaoke shop.  However, the shop had been subjected to the demands of protection monies from the local triad whose head was called Phuong.  The applicant also claimed that Phuong had the support from the local government authorities including the local police.  Between October 2012 and November 2013, the shop had been subjected to vandalism.  When the applicant was unable to pay the protection money, she was threatened.  In one incident in November 2013, the applicant’s employees and the applicant were assaulted by the triad members.  The applicant suffered a bleeding wound by the broken glasses that the triad threw at her.

9.  The applicant then went to the police station to report this incident. When the police officer refused to offer her assistance, the applicant became agitated and accidentally broke a statue of Ho Chi Minh, which was placed on a desk.  The applicant then fled as she believed that breaking a Ho Chi Minh statue could amount to an offence in Vietnam.

10.  While the applicant was in Hong Kong, she learnt from her mother that both the triad and the police had gone to her mother’s place to look for her.

11.  In the Director’s 1^st Decision, the Director decided against the applicant’s claim on all applicable grounds other than BOR 2.  The Director assessed the claimed risk of ill-treatment from triad members to have been low and there was no real intention to kill the applicant.  After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable.  Hence, the appeal to the Board.

12.  On 31 October 2016, the applicant testified before the Board.  In the Board’s 1^st Decision, the Board found that the applicant was dishonest and her account unreliable.  In any event, the Board found that the injuries that she claimed that she had suffered failed to satisfy the legal requirement of “torture”.  In the event, the Board found that it was safe for her to reside in Vietnam, and there were internal relocation options for her against the triad.  After considering the COI, the Board concluded that the applicant had not substantiated her case.

13.  On 3 March 2017, the Director, in his own initiative, issued a letter to the applicant inviting the applicant to submit additional facts, if any, relevant to her non-refoulement claim on all applicable grounds including BOR 2 risk.  The Director received the applicant’s letter in which it was stated that she had “a very difficult life” in Vietnam, and repeated her story about being threatened for not being able to repay her debt.  No information or additional facts about BOR 2 were submitted.  In the Director’s 2^nd Decision, the Director refused her non-refoulement claim on the BOR 2 ground.  Hence, an appeal to the Board against the Director’s 2^nd Decision.

14.  Having considered all the documents and evidence before the same constituted Board, the Board decided to dispose of the appeal on paper without a hearing.  In the Board’s 2^nd Decision, the Board found that the applicant had not substantiated her case and that the applicant failed to establish her case under BOR 2 risk and confirmed the Director’s 2^nd Decision.

Legal principles applicable to judicial review

15.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

16.  The applicant’s Form 86 did not contain any grounds for seeking relief.  As for the grounds contained in her supporting affirmation of the same date, she only deposed that she did not want to leave but did not provide any particulars.

17.  The applicant’s challenge to the Board’s 2^nd Decision is out of time as the deadline for the filing of the leave application should have been on 10 July 2019.  In considering whether to extend time for leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended challenge; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

18.  In this case, not only the applicant has not put forth any grounds in support of the Leave Application, she has given no explanation at all for her delay.  The delay of more than one month is not insubstantial.  Having rigorously examined the Board’s 1^st and 2^nd Decisions with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness.  I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision.  The Board had taken all the relevant circumstances of the applicant’s claim into account in its assessment.  I find that it was perfectly open to the Board to come to its conclusion that the applicant had failed to discharge the burden of proving the asserted fears and risks.

19.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I will further refuse to grant any extension of time to the applicant to file this Leave Application out of time.  The Leave Application is accordingly dismissed.

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