TRAN QUANG THANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1547/2022

[2024] HKCFI 1473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1547 of 2022

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 be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 21 December 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 22 September 2022 (the “Decision”) refusing his late filing of Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 31 July 2017 (the “Notice”), made more than five years ago. 

2.  In response to the Court’s letter dated 2 February 2024 requesting for information and filing of submissions, he requested for adjournment pending his legal aid appeal.  His application for legal aid had been refused on 10 February 2023, more than a year ago.  At the hearing, he asserted that he had appeal the decision, but never received any information from the Court as to the outcome of his legal aid appeal.  That is incredible.  But even assuming that his legal aid appeal is still pending, it is not a good reason for adjournment.  As the matter now stands, he had applied for legal aid and his application had been refused.  There is no reason to grant a stay pending a legal aid appeal.  Having read the papers and having regard to the issues raised in this application, the Court considered that he will not suffer any prejudice by reason of lack of legal representation.  Hence, his application for adjournment is refused.

3.  The Applicant is a Vietnamese national.  He has a long history of committing crimes in Hong Kong. His earliest conviction dated back to 1990.  He has been convicted of burglary, theft and a wide range of immigration-related offences.  His last illegally entry into Hong Kong took place on 6 April 2016.  He surrendered to the authorities on the following day and made a non-refoulement claim on 23 May 2016.  In gist, he claims that he will be harmed by a moneylender, if returned to Vietnam as he will be unable to repay his outstanding loan.

4.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By his Notice of Decision dated 31 July 2017 (the “2017 Decision”) the Director rejected his claim.  He did not appeal.  These proceedings went dormant for more than five years.  He defaulted his recognisance entered into with the Director since September 2017.  On 5 September 2020, he was arrested by the police.

5.  Still, he did not appeal the 2017 Decision. Instead, he embarked on a new action by applying to file a subsequent claim on 23 October 2020.  His application was refused by the Director on 12 January 2021 (the “2021 Decision”).  His application for leave to apply for judicial review of the 2021 Decision under HCAL 74/2021 was refused by Deputy High Court Judge Bruno Chan on 30 September 2021[5]. Then more than a year later, he tried to resurrect his earlier non-refoulement claim by making a late filing of an NOA against the 2017 Notice.  His application for late filing was refused by the Board.  He now applies for leave to apply for judicial review of the Board’s Decision.

The relevant legal provisions relating to late filing of NOA

6.  Under the non-refoulement protection regime, a claimant aggrieved by the decision of the Director may appeal that decision by filing a NOA with the Board within 14 days after the notice of decision has been given to him: Section 37ZS(1) of the Ordinance and Paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Petition Guide”).  Failing that, he may also make a late filing, pursuant to Section 37ZT(1) of the Ordinance, by giving a statement of the reasons for his failure accompanied by all available supporting evidence.  For that purpose, Section 5 of the NOA form is designed as an application for late filing for the claimant to state the reasons for his failure when filing the NOA. 

7.  Section 37 ZT(2) of the Ordinance and Paragraph 9.2 of the Petition Guide mandate the Board to decide, as a preliminary decision without a hearing, whether to allow the late filing.  The subsection also requires the Board to only take account of the statement of reasons stated in Section 5 of the NOA, the supporting evidence relied on and any other relevant matters of fact within the knowledge of the Board.  Under Section 37ZT(3) of the Ordinance and Paragraph 9.3 of the Petition Guide, the Board may allow the late filing if the claimant has provided sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control.

The Applicant’s explanation for the delay

8.  The Applicant gave the following explanations for the late filing:

“1. The Applicant could not file the Notice of Appeal in time, because the medical report of his, which is crucial to his Appeal, was not ready until February 2022.

2. In addition, the COVID-19 epidemic has further delayed the progress of obtaining the medical report as well as the filing of the Notice of Appeal.

3. In July 2022, Torture Claim Appeal Board refused to process my appeal against the decision made by the Director.”

9.  He attached a bundle of documents in support of his appeal, but provided no evidence to account for his late filing and his inaction for five years since his receipt of the 2017 Decision.

The finding of the Board

10.  There is no dispute that the NOA was filed late by more than five years. 

11.  The Board rejected his first explanation as invalid. First, there is no requirement under the procedural rules under the USM that an NOA must be accompanied by a medical evidence before it would be accepted for filing by the Board.  Second, the Applicant was legally represented in bringing the appeal.  The Board found it difficult to accept that any qualified lawyer could possibly have given such a blatantly erroneous advice to an intending appellant.  It also considered it unlikely that his lawyer could possibly have made such a fundamental mistake when explaining to him the 2017 Decision and his right to appeal.  The Applicant also did not make any such allegation against his lawyer.  Third, even assuming that the Applicant somehow entertained such a mistaken belief, on the fact, it took him less than a month, after visiting three doctors, to obtain the medical evidence which he sought to rely as part of his additional evidence in support of  his appeal.  This explanation can hardly justify his procrastination for over five years.

12.  The Board rejected his explanation based on the COVID-19 pandemic.  The pandemic did not start in Hong Kong until early 2020.  The Applicant had two years before the pandemic to source his medical evidence.

13.  The Board also rejected his third explanation as misleading and groundless.  He accused the Board of refusing to process his appeal against the Director’s 2021 Decision in July 2022.  In fact, on 7 May 2022, the Applicant’s solicitors wrote to the Director and the Board about filing a NOA against the 2021 Decision.  The Board noted that the 2021 Decision is a decision made under section 37ZO of the Immigration Ordinance refusing the Applicant’s application to file a subsequent claim and that it has no jurisdiction under section 37ZR to hear such appeals. 

14.  For the above reasons, the Board found that there was no information to show the Applicant had exercised due diligence to file his NOA within the prescribed period nor was there circumstances beyond his control which rendered his delay inevitable.  It therefore refused the late filing.

Legal principles applicable to judicial review

15.  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[6].

Grounds for judicial review

16.  At the hearing, after the principles in the preceding section and the law applicable to late filing had been explained to him, he confirmed that he had no complaint about errors of law, procedural unfairness and irrationality in the Decision.  He emphasised he had submitted all the papers and documents to the Board about his dangerous situation in Vietnam.  The Court does not take his confirmation for granted, but examines the Decision with anxious scrutiny.   

17.  The Applicant advanced two grounds of judicial review in the Form 86.  First, he challenged the logics of the Board’s finding that he has a mistaken belief that his NOA must be accompanied by medical evidence but at the same time have not exercised due diligence to appeal on time.  Second, the Board was wrong in not considering the core issue of his case, ie the severity of the danger to his life if deported back to Vietnam. In his supporting affirmation, he filed a bundle of document relating to his claim for non-refoulement protection.  But those documents do not support his explanations for the late filing.

18.  The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to the Vietnam. These grounds are irrelevant as they are not directed at the issue of the late filing of the NOA.

Discussion

19.  The Applicant’s first ground is directed at the Board’s reasoning in paragraph 34 of the Decision.  The Board held:

“Assuming, for some reasons unknown to the Board, the Applicant entertains such a mistaken belief that a medical certificate is a pre-condition to filing his NOAP, the development of events did not support his contention of the need of a 5-year delay. The Applicant saw a paediatric practitioner Dr Chow in his Shamshuipo clinic on 19 January 2022 who referred the Applicant to the Caritas orthopaedic unit. About a month later on 15 February 2022 the Applicant saw an orthopaedic specialist Dr KS Wong in Mongkok orthopaedic centre and the Applicant obtained a letter from a Dr. Law on the following day of 16 February 2022 – the letters of which the Applicant now seeks to rely on as part of his additional evidence towards his appeal/petition. Without going into the details or the merits of those letters from the various doctors, it is quite clear that the Applicant had managed to procure the medical information he wishes to rely on within a matter of one month’s time. A month’s procurement period can hardly justify the Applicant’s procrastination for over 5 years.”

20.  What the Board did was to assume in favour of the Applicant that he had a mistaken belief that the NOA must be accompanied by medical evidence.  Then it found by logical deduction, that as the Applicant could obtained the type of medical evidence he need within a month, there was no reason why it took him more than five years to file the NOA.  His very failure to file the NOA until more than five months later is evidence of failure to exercise due diligence.

21.  As for the second ground, as explained in paragraphs 5 and 6 above, the grounds of his non-refoulement claim cannot explain his delay and therefore are not relevant factors to be taken into consideration in determining whether to allow the late filing.

Conclusion

22.  For the above reasons, the Applicant has no valid grounds of review.  In the absence of proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

23.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly directed itself on the law and key legal principles applicable to the late filing of NOA.  The Decision is essentially one of finding of fact that the Applicant had no reasonable explanation for the delay.  That is finding of fact solely within the realm of the Board which the Court on a judicial review will not intervene save for error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision. The Board observed a very high standard of fairness.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Applicant has no arguable grounds for judicial review.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

24.  Accordingly, leave to apply for judicial review is 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] 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

[2] 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”)

[3] 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

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

[5]  [2021] HKCFI 2927

[6] [2018] HKCA 524 at [14(1)]