NGUYEN BUI TUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 2103/2019

[2025] HKCFI 4778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2103 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 49-years-old national of Vietnam who entered Hong Kong illegally on 6 July 2015 with his 25-years old son and were arrested by police on 8 July 2015. After they were referred to the Immigration Department for investigation, the Applicant raised a non-refoulement claim for protection for himself and his son on the basis that if they returned to Vietnam they would be harmed or killed by his creditor over his unpaid debts. They were subsequently released on recognizance pending the determination of their claims.

2.  The Applicant was born and raised in Village Duong Quan, District Thuy Nguyen, Hai Phong, Vietnam. After leaving school he worked as a casual worker to make his living, got married and raised a family with 2 sons in his home district.

3.  In early 2013, he started his own seafood business with the help of a loan borrowed from a local money-lender repayable within 2 years and with monthly interest payments which he initially managed to make from his business income.

4.  However, in December 2014 he started to default with his loan repayments after losing all his fish stocks and produce to some unknown epidemic, and that by early 2015 he had to close down his business, and soon his creditor would send men to threaten him, and after being beaten by those men on one occasion in April 2015, the Applicant became fearful for his life and together with his younger son fled to Mong Cai, and on 30 June 2015 they departed Vietnam for China, and from there they later sneaked into Hong Kong and subsequently surrendered to the Immigration Department and jointly raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form (“NCF”) on 4 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 22 January 2016 the Director of Immigration (“Director”) rejected the claims of the Applicant and his son on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the claims of the Applicant and his son and assessed the level of risk of harm from his creditor and followers upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill the Applicant or his son other than to press him to repay his debts, that in any event it was a private monetary dispute between the Applicant and his creditor only without any official involvement that state or police protection would be available to the Applicant and his son if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move with his son to other areas of the country away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate either of them.

7.  The Applicant did not at that time lodge any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision within the prescribed time, and meanwhile on 7 November 2016 the Director on his own initiative invited the Applicant to submit any additional facts which he might consider relevant to the non-refoulement claim of his or his son for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any reply or response from the Applicant or his son, the Director by a Notice of Further Decision dated 24 November 2016 also rejected their BOR 2 Claims upon finding that they had failed to establish a personal and real risk of their absolute and non-derogable rights under the HKBOR including their right to life under BOR 2 being violated upon their return to Vietnam.

8.  On 29 May 2018 the Applicant lodged an appeal to the Board against each of the Director’s decisions with just himself named as the appellant but not for his son, and as both Notices of Appeal were filed outside the 14-days period after notice of the respective decision was given to him as required under Section 37ZS(1) of the Immigration Ordinance, Cap 115, and for which he gave the same reason that he had been in prison or detention and was not aware of either decision of the Director but without any further details or documentary evidence in support of his assertions.

9.  In pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of each Notice of Appeal of the Applicant, and by 2 separate decisions dated both 19 July 2019, the Board refused the late filing of both Notice of Appeal of the Applicant against the respective Decision and Further Decision of the Director.

10.  In its decision[1] as regard the Applicant’s Notice of Appeal against the Director’s first decision of 22 January 2016, the Board found that the deadline for the Applicant to file his Notice of Appeal as on 11 February 2016, that it was filed on 29 May 2018 was therefore late by more than 2 years, that the record shows at the time of the postal service of the decision on him through his lawyer from DLS on 22 January 2016 that he was not being detained or in prison and hence his given reason was not acceptable, and that there were no circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

11.  Similarly in its second decision[2] of the same date on the Applicant’s intended appeal against the Further Decision dated 24 November 2016 of the Director, the Board found that the decision was also served on the same day by post to the Applicant’s then reported address without being returned through undelivered post, that the deadline for him to file his appeal was 12 December 2016, that his Notice of Appeal filed on 29 May 2018 was therefore also late by almost 1 ½ years, that his same reason of being in prison or detention was also not supported by records provided by the relevant authorities, and that there were also no special circumstances that would otherwise make it unjust not to allow the late filing of the Applicant’s Notice of Appeal against the Further Decision of the Director either.

12.  On 23 July 2019, the Applicant filed his Form 86 for leave to apply for judicial review of both decisions of the Board, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached copies of the decisions but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application when he also confirmed that his application does not include his son who had earlier already been repatriated to Vietnam.

13.  Nevertheless, given the seriousness of the issue at hand and the implication of the Board’s decisions which denied the Applicant the right to the second-tier screening of his non-refoulement claim under any of the applicable grounds by the Board under the Unified Screening Mechanism (“USM”) due to procedural breaches (albeit very serious ones in both intended appeals), the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing the late filing of each of the Applicant’s appeals.

14.  From the decisions of the Board as noted above, the Board was in my view certainly entitled in both cases to find the Applicant’s delays in the filing of his Notice of Appeal very serious and substantial and that his given reasons not acceptable, but in its consideration of any other relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance, as the law then was, as it had so directed itself in both of its decisions, it seems to me that the Board had failed to take account of the merits of the Applicant’s appeals in both decisions, but which was held to be relevant by the Court of Appeal in Re Khan Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, as Lisa Wong J in giving judgement of the Court in the latter case elaborated as follows:

“23. … even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Ahmed, CACV 563/2018. [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

15.  For these reasons, I am of the view that the Applicant’s intended applications for judicial review of both decisions of the Board on the basis that it had failed to take account of the merits of either of his appeals or the substance of his claim in refusing the late filing of both of his notices of appeal against the respective decisions of the Director, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

16.  Accordingly, I extend time to the application, and grant leave to the Applicant to apply for judicial review of both decisions of the Board on the ground as stated above, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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