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

HCAL 2266/2019

[2025] HKCFI 96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2266 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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 expires on 5 February 2019. His application was filed on 18 August 2019, which is late for more than 6 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 52, is a Vietnamese. He arrived in Hong Kong by boat on 23 July 1988 and was detained in the Whitehead Detention Centre. He was arrested by the police for murdering a Vietnamese on 20 June 1991 and was sentenced to life imprisonment on 9 August 1993. The applicant was released upon pardon in February 2015 and he made a non-refoulement claim on 8 April 2015. The claim was made on the basis that, if refouled, he would be (i) mistreated by the Vietnamese authorities because he would be regarded as committing treason for fleeing the Vietnamese communist regime in 1988; (ii) charged for murdering a Vietnamese in Hong Kong; (iii) revenged by the family of the murder victim and (iv) denied proper medical treatment for his kidney disease.

5.  According to the applicant, he and his family were mistreated by the Vietnamese government for being Catholics. In order to flee from the Vietnamese regime, the applicant and his family had made various attempts to come Hong Kong by boat. On 23 July 1988, he and his sister managed to arrive in Hong Kong. They sought asylum, but their claims were rejected. During detention at the Whitehead Detention Centre, the applicant murdered a Vietnamese and wounded another (“the victims”). He was sentenced to life imprisonment, but was later released upon pardon in February 2015.

6.  The applicant feared that his flee from Vietnam in 1988 would be regarded as treason by the Vietnamese government. He also worried that he would be charged for murder upon return to Vietnam because the victim was a Vietnamese. The applicant further claimed that the victims’ family had approached his family on various occasions demanding compensation and he feared retaliation by them. He also mentioned that he would be unable to receive proper treatment for his kidney disease if he returned to Vietnam.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 17 November 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on BOR 3 risk, Persecution risk and Torture risk. The Director found that: (i) the low intensity and frequency of past ill-treatment from the victims’ family indicated the unlikelihood of future risk of harm upon his return to Vietnam [18]-[20]; (ii) state protection would be available [22]-[24]; (iii) there was no evidence suggesting that the applicant would be at risk of unfair treatment by the Vietnamese authorities as a returnee or as a Catholic [25]-[26]; (iv) the limitation period for penal liability had already expired, so that the applicant’s fear for being charged for murder upon return to Vietnam was without basis [27]-[28]; (v) assistance would be available to the applicant for reintegrating into the society as an ex-prisoner and for treatment of his kidney disease [29]-[30] and (vi) internal relocation would be viable [31]-[33].

10.  In the Notice of Further Decision dated 28 June 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

11.  The applicant appealed the Director’s 1^st and 2^nd Decisions to the Board. On 28 August 2017, the Board conducted a hearing.

12.  The Board found the evidence given by the applicant was generally consistent. The Board accepted his immigration and criminal history, as well as matters concerning his chronic kidney condition [59]-[61].

13.  Regarding the applicant’s claimed fear from the Vietnamese government, there was no indication from the country of origin information (“COI”) that persons having departed Vietnam illegally would face any difficulties upon return to Vietnam nowadays. COI also did not support the applicant’s claim that he would be targeted because of his Roman Catholic family background [62]-[63]. Meanwhile, the applicant’s worry about facing criminal liability in Vietnam had no basis given that the Vietnamese Penal Code limited penal liability to 20 years from the date of offence commission [64]-[65].

14.  In relation to his fear of retaliation from the victims’ family, the Board considered this unlikely given the passage of time and that in any event, the applicant could approach the Vietnamese authorities for protection if necessary [66]-[67]. As to the medical treatment for his kidney failure, COI indicated the availability of budgeted health insurance, so that he would not be deprived of necessary treatment [68]-[73].

15.  Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [14]-[27], [77]-[80]. The applicant’s appeal was therefore dismissed and the Director’s 1^st and 2^nd Decisions were confirmed.

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

16.  The applicant has filed Form 86 dated 8 August 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant reiterated his reasons for coming to Hong Kong. He did not raised any specific ground against the Board’s Decision.

DISCUSSION

18.  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.

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

20.  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.”

21.  For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country.

22.  The applicant has not raised any valid ground to challenge the Board’s findings.

23.  There is no reason for this Court to interfere with the Board’s Decision.

24.  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

25.  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.