TRAN DINH KHANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3006/2019

[2025] HKCFI 879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3006 OF 2019

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BETWEEN

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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 28 June 2019 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 expires on 28 September 2019. His application was filed on 14 October 2019, which is late for 16 days. This issue will be dealt with below.

2.  The applicant did not ask for a hearing. I shall deal with his application on the papers.

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 65, is a national of Vietnam. Between 1989 and 2015, he had been entering Hong Kong illegally and repatriated back to Vietnam 4 times. On 12 January 2015, he surrendered to the Immigration Department as an illegal immigrant. He lodged his non-refoulement claim on 12 January 2015. He claimed that, if refouled, he will be at risk of being harmed by the Vietnamese authorities because he had been discriminated and harassed of being ethnically Chinese in Vietnam.

5.  According to the applicant, he had the pressure of being discriminated by the state and the society. In 2002 and 2014, there were wars between China and Vietnam over the Nansha Islands. The political tension between the 2 countries intensified the discrimination. He had smuggled cars from China to Vietnam and also operated gambling establishment. He was detained and tortured by the police officers. He considered that were he an ethnic Vietnamese, he would only be fined. The severe punishment was because of his Chinese ethnicity. Life was difficult and he did not want to live under such pressure. This is why he came to Hong Kong several times.

6.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 5 April 2017 (“the Director’s Decision”).

The Director’s Decisions

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.  The Director refused the applicant’s claim for the reasons: (i) the risk of being harmed or killed in Vietnam is low; (ii) state protection will be available; and (iii) internal relocation is viable. [13]-[26]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 4 March 2019, the Board held an oral hearing for him, but he was absent. The Board then gave notice to him under Section 15 of Schedule 1A of the Ordinance, Cap.115. He did not respond to the Board’s notice. The Board determined his application on paper in his absence.

10.  Having considered the applicant’s evidence, the Board had made the finding of the facts below, dismissed his appeal and confirmed the Director’s Decision.

(1) The applicant admitted that if he did not contravene the law, he would not be discriminated. [46]

(2) The Board did not believe his evidence that he had been ill-treated by the Vietnamese authorities. [53]

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

11.  The applicant has filed Form 86 dated 14 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

13.  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.

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.  For the reasons the Board has given above, the Board found that the applicant is not eligible for non-refoulement protection. 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.

17.  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

18.  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.