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HCAL 812/2024
[2025] HKCFI 162
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 812 of 2024
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BETWEEN
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Bui Phuong Thao |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 is amended on the court’s own motion.
2. The applicant’s application to withdraw the Leave Application be refused.
3. The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 22 May 2024, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office ("Board") dated 20 December 2023 (“Board's Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration ("Director") dated 14 September 2022 (" Director's Decision") rejecting the applicant’s non-refoulement claim.
2. In Form 86, the applicant named the Board and the Director as the proposed respondent(s) but did not name any party as the interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.
Background
3. The background as taken from the Board’s Decision can be briefly stated as follows.
4. The applicant is a national of Vietnam. She arrived in Hong Kong on 14 March 2022 illegally via Mainland China. On 10 June 2022, the applicant was arrested by police. On 18 June 2022, the applicant lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by her creditor for an outstanding loan of 400,000,000 Vietnamese Dong if she were refouled.
5. After the Director had rejected her claim, the applicant appealed to the Board.
6. On 12 July 2023, the applicant attended a hearing before the Board. The Board did not accept that her creditor had intended to kill the applicant, and that the harm or ill-treatment was not imminent. The Board further found that both state protection and internal relocation were available to her. The Board found that the applicant had failed to establish her case.
Legal principles applicable to judicial review
7. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
Discussion
8. The applicant’s proposed grounds of appeal were set out in Form 86, totaling 6 paragraphs. It was contended that the Board had acted unreasonably and procedurally without taking into account of her personal background and accepting her explanation. The supporting affirmation only exhibited the Board’s Decision without any elaboration of the grounds stated in Form 86. Overall, the applicant has failed to identify any arguable error of law by Board, any relevant matter that the Board had failed to consider, or any other reason why the dismissal of the appeal was wrong.
9. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge her burden of proving the asserted fears and risks.
10. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Late application
11. Pursuant to O.53 r4 (1) of the Rules of the High Court, an application for leave to apply for judicial review is required to be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made. This Leave Application was filed more than 2 months after the expiry of the time limit on 19 March 2024. The criteria for granting an extension of time 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:
(see: AW v Director of Immigration [2016] 2 HKC 393)
12. In neither the Form 86 nor the supporting affirmation has the applicant provided any explanation for the delay. In view of the complete absence of reason for the delay, and having regard to the discussion above, this court is disinclined to grant an extension of time to the applicant to file the Leave Application out of time. The Leave Application shall be dismissed.
Withdrawal of Leave Application
13. By a hand-written letter dated 14 October 2024, the applicant applies to withdraw the Leave Application, stating that she wants to go back to her home country as the problem is solved and it is now safe for her to return.
14. On 22 November 2024, this court sent a letter to the applicant, directing her to file an affirmation or a statement within 14 days to confirm that her withdrawal application was made out of her own free will. The applicant was further informed that if the court received nothing further from the applicant within that period, the court would refuse her withdrawal application and might dismiss the Leave Application for want of prosecution. As the applicant has not filed any document as directed within the stipulated period, the Leave Application is dismissed for want of prosecution.
Orders
15. The Form 86 is amended on the court’s own motion.
16. The applicant’s application to withdraw the Leave Application be refused; and
17. The Leave Application be dismissed.
Dated the 22nd day of January 2025
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( Alfred Chan )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 22/1/2025
Bui Phuong Thao
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22/1/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21707
Director of Immigration
Putative Interested Party’s ref. no.:
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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