NGUYEN THI HUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1831/2020

[2025] HKCFI 6235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1831 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 12 January 2018”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 31 August 2020 and filed on 14 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which the applicant described as follows:-

“15/6/2014. Dismiss hearing dismissed my appeal by torture claims appeal board dismissed my petition seeking Judicial Review”.

2.  The Torture Claims Appeal Board (“the Board”) only made one decision dated 12 January 2018 (“the Board’s Decision”), which dealt with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 February 2016 (“the Director’s Decision”).

3.  In the Director’s Decision, the Director rejected the applicant’s claim on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).

4.  The Director made a further decision on 23 December 2016 (“the Director’s Further Decision”), which rejected the applicant’s claim on the ground of BOR 2 Risk[4] under the USM.

5.  The Board received the Director’s Further Decision on 30 December 2016, and hence also considered the ground of BOR 2 Risk in the Board’s Decision. Thus, the applicant’s claim for non-refoulement protection was assessed by the Board on all the applicable grounds under the USM.

6.  Clearly, the applicant was referring to the Board’s Decision in Form 86, as there was no other decision dated 15 June 2014. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001831_2020_files/the_Board's_Decision.pdf

7.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. Hence, the Board dismissed her appeal/petition and confirmed the Director’s Decision as well as the Director’s Further Decision.

Amendments

8.  The applicant named both the Board and the Director as the putative respondents but did not name any putative interested party in Form 86, when only the Board should be the putative respondent and the Director should be the putative interested party.

9.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.

10.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 12 January 2018”.

Late application

11.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

12.  However, the applicant filed her Form 86 on 14 September 2020, which was more than 32 months after the Board’s Decision (made on 12 January 2018). The applicant was hence late for more than 29 months in making the Leave Application.

13.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

14.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

15.  A delay of more than 29 months is very substantial. More importantly, there is no merits in the Leave Application as discussed below.

16.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

17.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

18.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

19.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, she feared being harmed or killed by her creditors due to her loan defaults amounting to approximately VND 400 million in total, and by her husband due to domestic violence.

Disposal on paper

20.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.

Grounds for judicial review

21.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

22.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 14 September 2020. She merely stated in the affirmation that she was applying for judicial review for her non-refoulement claims decision against the Director of Immigration.

Discussion

23.  First of all, the Director’s Decision and the Director’s Further Decision were superseded by the Board’s Decision and are no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, this court will only deal with the Leave Application in respect of the Board’s Decision.

24.  The role of the court in judicial review is not to re-assess the non-refoulement claims 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. 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 [2018] HKCA 524).

25.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.

26.  In assessing the appeal by the applicant, the Board held an oral hearing on 14 December 2016. The applicant was present and was given the chance to present her case to the Board in person.

27.  As can be seen from the Board’s Decision, the Board had put the applicant’s case to its highest in considering the evidence adduced by her. The Board accepted that she had been involved in loan defaults with her creditors, subjected to domestic violence by her husband and was ill-treated.

28.  However, the Board found that given the frequency, duration and severity of injuries of past ill-treatments both by the creditors and the applicant’s husband, those ill-treatments did not attain a minimum level of severity nor could be regarded as torture as defined under Section 37U of the Immigration Ordinance. There was no evidence to suggest state acquiescence in the ill-treatments by the creditors and the applicant’s husband.

29.  The applicant had never formally reported the assaults from her creditors and her husband to the police. The Board found from extensive country of origin information (“COI”) that despite the problem of corruption and ineffectiveness of the authorities, reasonable state protection would be available to the applicant upon her return to Vietnam.

30.  In respect of all the applicable grounds under the USM, the Board found no real chance that the applicant would be harmed or killed by her creditors and her husband. Any ill-treatment she faced or might face was not and would not be for a Convention reason.

31.  Although the Board did not assess the viability of internal relocation for the applicant, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

32.  As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to further consider internal relocation.

33.  The finding of facts including the assessment of risk and COI was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

34.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

35.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

36.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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