PHAM DUY KHANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3136/2019

[2025] HKCFI 1927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3136 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 20 October 2017 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 29 January 2018. His application was filed on 23 October 2019, which is late for more than 1 year and 9 months. This issue will be dealt with below.

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 18 March 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 18, is a national of Vietnam and illegally arrived in Hong Kong by boat with his mother as a minor on 3 December 2015. On 8 December 2015, they surrendered to the Immigration Department for illegal remaining and in due course, the applicant, together with his mother, lodged their non-refoulement claim. When he was a minor, his claim relied upon his mother’s facts. Now, he is of age and this is his own application. However, the facts of his claim remain to be his mother’s facts.

5.  The applicant’s claim was based on his fear of being harmed or killed by his mother’s creditor because she failed to settle the loan and interest in default.

6.  According to the applicant’s mother, she was threatened by creditors for refusing to pay back the loan of 600 million Vietnamese Dongs. Details of his mother’s claim are set out at paragraph 6 of the Notice of Decision dated 11 May 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim. In summary, the Director found that: no substantial grounds that the creditor would harm or kill the applicant nor the perceived fear was real and foreseeable since the creditor had not caused any physical harm or injury other than verbal threat [10-11]; state protection was available [12]; and internal relocation alternatives were available and reasonable [13].

9.  By way of the Director’s Further Decision dated 22 September 2017, the Director assessed the minor applicant’s and his mother’s claim jointly on all applicable grounds including BOR 2 risk and dismissed their claim. In summary, the Director found that: the submissions were just repeated materials and that, referring to the Director’s Decision, state protection was available and that the perceived risk of harm is avoidable if relocated [6]. Having carefully reviewed the applicant’s claim, it was considered that the applicant has failed to establish BOR 2 risk [7].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 29 August 2017, the Board conducted an oral hearing. At the hearing, the Board rejected the mother’s account as being untruthful [16-22].

11.  Having considered the applicant’s evidence, the Board found that the mother’s account was unsubstantiated and unsatisfactory [31]. The Board considered that the minor applicant relied on the same grounds as his mother and that no other evidence was submitted on his behalf [83]. In any event, the Board found that internal relocation was reasonable or not unduly harsh for the minor applicant and his mother [72-78]. In conclusion, the Board held the applicant’s and his mother’s claim failed under all applicable grounds. It therefore dismissed their appeal and confirmed the Director’s Decision and Director’s Further Decision.

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

12.  The applicant has filed Form 86 dated 23 October 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant deposed in Chinese that he would be harmed by creditors if refouled, but again he did not put forth any grounds.

DISCUSSION

14.  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 (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that his mother had returned to Vietnam to continue with her own life. He said that he wanted to remain in Hong Kong as he would be taking his examination for the university entry.

16.  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.”

17.  The applicant’s application fails as his mother has returned to Vietnam. As to the reasons of his education in Hong Kong, I had explained to him that those are not valid to challenge the Board’s Decision. Therefore, the applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

18.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his 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 his application.