HOANG VAN QUYEN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1787/2018

[2020] HKCFI 805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1787 of 2018

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

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 17 May 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing scheduled on 31 December 2019. I shall proceed to consider his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) and replacing it with the Board as proposed respondent.

The applicant

4.  The applicant is a Vietnamese national. He came to Hong Kong on 2 October 2015 illegally and he surrendered himself to the Immigration Department on 8 October 2015.  He lodged a non-refoulement claim on 8 October 2015.

5.  He claimed that if refouled, he would be harmed or even killed by his creditor as he was unable to repay the loan.

6.  The applicant ran a construction materials shop. In 2013, he wanted to expand his business. He borrowed 700 million Vietnam currency from a creditor with triad background. In 2014, his business ran down and he was unable to repay the money to the creditor. The creditor sent five people to his shop and took away his construction materials for part payment of the debts. He had to close down his business. He moved to live in other places in order to avoid the creditor. He knew from his family that the creditor would kill him if they found him. In 2015, he came to Hong Kong for asylum.

The Director’s Decision

7.  The Director considered his application in relation to the following risks:

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

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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.  By Notice of Decision dated 23 October 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risks as alleged if he returned to Vietnam was low [11]; that state protection was available to him [19] and internal relocation was an option open to him [30]. His claim under BOR2 risk was not established.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. The Board decided that the application could be dealt with justly without a hearing [21].

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and found that even if it accepted the facts alleged by the applicant, the applicant was not eligible for non-refoulement protection because he was not subjected to torture in Vietnam and there was no evidence that he would be subjected to torture if he returned to Vietnam [24 & 41]; that there was no evidence that the state was involved [41]; and internal relocation was an option open to him [46].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 dated 30 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he only complained that the decision was unfair and he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.  The applicant’s application is late for 13 days (17/5/2018 – 30/8/2019), which is not a long delay. However, I have to consider the merits of his case in order to determine whether time should be extended for him to file his application before I consider his application. Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28 and AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

15.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

17.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.  I therefore refuse to extend time for the applicant to file his application to apply for leave to apply for judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

19.  It is further directed that:

a.     If the applicantintendsto appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicantmust at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.     Liberty to apply.

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