TRAN THI HIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 13/2022

[2022] HKCFI 1802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 13 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;

1.  Extension of time to apply for leave to apply for Judicial Review be refused; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 6 January 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 21 October 2020 (the “Decision”) allowing her application to withdraw her appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 November 2019.  She did not advance any grounds of application in her Form 86 or supporting affirmation.

2.  The Applicant is a Vietnamese national, now aged 24.   She claimed to have entered Hong Kong illegally on 26 June 2019 and was arrested on 4 September 2019.  On 9 September 2019, she raised a non-refoulement claim.  The basis of her claim is that, if returned to Vietnam, she will be harmed or killed by her moneylender for not being able to repay the loan she borrowed from him.

3.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  Her claim was dismissed by the Director’s Notice.  On 5 December 2019, she lodged a notice of appeal against the decision of the Director in the Notice.  Ten months later, she applied to withdraw her appeal on 15 October 2020.  The Board allowed her application by its Decision dated 21 October 2020.  She now seeks judicial review of that Decision.

4.  The leave application was filed fourteen and half months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than eleven and half months out of time.  The leave application is deemed to include an application for extension of time to apply.

5.  In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. 

6.  The delay of eleven and half months is substantial.  The Applicant gave no explanation for the delay and did not state her grounds of judicial review.  To assist her to present a proper application, the Court gave her directions by letter dated 30 June 2022 to file a statement within 14 days of the letter setting out her explanation for taking about 14 months to make the leave application; the date and circumstances when the Decision was received or came to her notice; and her grounds of the proposed judicial review.  As at the date of the issue of this Form Call-1, the Applicant has not responded.

Length of and explanation for delay

7.  The leave application was filed eleven and half months out of time.  In the context of a three months’ period for making the application, it is inordinate.  Despite directions having been given to her to file a statement explaining the reasons for the delay, she did not respond.  The letter containing the directions was sent to her last known address provided by the Immigration Department after her discharge from the Castle Peak Bay Immigration Centre where she was detained at the time she made the leave application.  The delivery service of Hong Kong Post is usually very reliable.  The letter has not been returned through the course of mail.  There is nothing to suggest that she has not received the letter.  She is deemed to have waived her right to provide the information in support of her applications. 

Merits of the intended judicial review

8.  The Applicant did not advance any ground of application in her Summons or affirmation.  Despite the Court’s specific request for her grounds of judicial review, she did not respond.  It is inexplicable why she wished to review the Board's Decision granting her what she applied for and why it took her fourteen months to make up her mind to seek leave to apply for judicial review of that Decision.  Without even knowing what her grounds are, it is difficult to assess the prospect of success of her intended judicial review.  The role of the court in judicial review is not to make the decision 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.  In a judicial review, 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]; Re Md Shohel Sheak[7];and Re Limbu Birkhaman[8].  In the absence of any specific grounds challenging the propriety of the Board’s Decision, the Court can only focus on the above vitiating elements in the Decision.

9.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had properly directed its mind to the law and key legal principles relating to withdrawal of applications; that the application to withdraw was voluntarily made out of the Applicant’s free will; and that she understood the consequences of the withdrawal.  The Court was satisfied that in allowing her application to withdrawal, the Board had made no error of law, had observed a very high standard of fairness and had exercised its jurisdiction with propriety.  On the materials available, the Applicant’s intended judicial review has no prospect of success at all.

Prejudice to the Applicant as against that to the intended respondent; important question of law

10.  As the Applicant’s intended judicial review has no prospect of success, she would suffer no prejudice if extension of time is refused.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of application with some prospect of success is obvious.  The application is an abuse of legal process and would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  Allowing it to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

11.  The Applicant’s intended judicial review has no prospect of success and did not raise any questions of general public importance, let alone ones which are likely to have to be resolved by the courts in any event. 

Conclusion

12.  The Applicant offered no explanation for the very substantial and inordinate delay.  To allow the challenge which has no prospect of success to proceed is an abuse of legal process.  It will be prejudicial to the intended respondent.  The intended judicial review does not raise any questions of general importance.  For all these reasons, leave to file the application out of time and leave to apply for judicial review are 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