PHAM THI TUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 7 July 2017 of the Torture Claims Appeal Board (“the Board’s Decision”).  Her application is late.  Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 7 October 2017.  Her application was filed on 8 December 2021, which is late for more than 4 years.  This issue will be dealt with below.

2.  The applicant did not request an oral hearing.

3.  The Board’s Decision is in Chinese.  This Form CALL-1 is in English because the applicant has filed her affirmation in support of this application in English.

The applicant

4.  The applicant is a national of Vietnam.  She is an illegal immigrant.  She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she will be harmed or killed by her creditor because she was unable to repay her loan.  Details of her story are set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001664_2021_files/the_Board's_Decision.pdf.

The Director’s Decision

5.  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”).

6.  By way of Notice of Decision dated 12 August 2016 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board.  The Board had considered the case of ST v Betty Kwan & Ors, CACV 115/2013, and decided to deal with her appeal without a hearing.

8.  Having considered the materials before it, the Board made the findings below.

(1)   The applicant had only been assaulted by slapping on her face and wooden planks on her body, which were not serious injuries. [25], [31] & [32]

(2)   There was no element of persecution in her claim. [26]

(3)   BOR 2 risk is simply not engaged. [41]-[43]

(4)   State protection will be available if she returns to Vietnam. [35]

(5)   Internal relocation is viable. [50]

9.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

10.  The applicant has filed Form 86 dated 8 December 2021 for leave to apply for judicial review of the Board’s Decision.

11.  In support of her application, the applicant said that the Board did not give her an opportunity to clarify her case and situation in her country.

DISCUSSION

12.  As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider, inter alia, the prospect of the intended appeal.  I shall consider the merits of the applicant’s case.

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.”

16.  The reason raised in paragraph 10 does not assist her application as the Board was entitled to deal with her appeal without an oral hearing under the law.  The applicant has not spelt out what clarification she intended to make before the Board.  The Board did not dispute the facts as she claimed.  Based on the accepted facts, the Board found that she is not eligible for non-refoulement protection, which the Board was entitled to find after assessment of her case.

17.  The applicant has not given any explanation for her delay for over 4 years.

18.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

19.  I refuse to extend time for the applicant to apply 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