TRAN DUC NGOC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1252/2018

[2021] HKCFI 530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1252 OF 2018

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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 3 November 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. I shall deal with his application for extension of time to file the application for leave for judicial review below.

2.  This application did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

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

The applicant

4.  The applicant is a Vietnamese national. He came to Hong Kong illegally on 23 April 2015 and was arrested by police on 25 April 2015.  He lodged his non-refoulement claim with the Immigration Department on 29 May, 1 August and 25 November respectively in 2015.  He did not attend the interview arranged for him on 21 June 2016.   He was arrested by police on 30 May 2017.

5.  He claimed that if refouled, he would be harmed or killed by his creditor because he was unable to repay loans he had drawn down since 2006 for his business.  The creditor was a triad related to police.  He brought along his people to the applicant’s premises to chase repayment of the loans from time to time.  But they did not harm him.  He did not report the matter to police because he considered that the creditor was having connection with the police.  He had hidden himself up in order to avoid the creditor.  In 2015, he decided to leave Vietnam for Hong Kong.  Details of the incidents are contained in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life)  (“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”).

7.  By Notice of Decision dated 17 July 2017 (“the Director’s Decision”), the Director refused his claim for the reason that the level of risk he might have if he returned to Vietnam was assessed to be low [13]; that state protection would be available to him [18]; that there was no evidence that the creditor was related to the police [21] and internal relocation was an option open to him [22].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision.  He attended the hearing before the Board on 23 October 2017.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out below.

(1)  The applicant’s level of risk of being harm if he returned to Vietnam was low. [26]

(2)  State protection was available to him. [28]

(3)  Internal relocation was an option open to him. [32]

(4)  For the reasons above, the Board rejected his claim on Torture risk [41]; BOR 2 risk [45]; BOR 3 risk [48] and Persecution risk [50].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision.  His application is out of time under O.53, r.4 of the Rules of the High Court (“RHC”).  The Court will have to consider whether leave should be granted to the applicant to file the application out of time.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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.

11.  In his affirmations in support of his application, he said that he would be harmed if he returned to Vietnam.  But he had not stated what wrong the Board had committed in its Decision.

DISCUSSION

12.  As mentioned in paragraph 1, this is a late application. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14 July 2020, Fok PJ held:

“39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

I shall now consider the merit of the applicant’s case.

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  See paragraph 9 above.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… … 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.  His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to grant extension of time for the applicant to apply for leave to apply for his intended judicial review.  Accordingly, I dismiss his 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