VU THI NGOC MY v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 865/2022

[2023] HKCFI 711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 865 of 2022

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 1 August 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 8 May 2021 and was arrested by the police on 10 May 2021.  On 25 June 2021 and 7 July 2021 respectively, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor Ms. Dinh Thi Thuy.

5.  In brevity, the applicant borrowed the loan in December 2020 to fund her clothing business.  She was required to repay the loan within a year.  However, due to the pandemic, her business collapsed and she started to default the monthly payments to the creditor since March 2021.  Since then, the creditor, together with her followers, had been chasing the applicant for the loan payments in three occasions.  The applicant was threatened and assaulted, and her properties were damaged by the creditor.  Out of fear, she eventually fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 17 August 2021 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[16]; (ii) state protection would be available to her [17]-[21]; and (iii) internal relocation was a viable option [22]-[24].

The Board’s Decision

8.  On 25 April 2022, the applicant filed her notice of appeal/petition against the Director’s Decision.  She was 7 months and 24 days out of time.  As a result, the Board proceeded to determine whether to allow her late filing of notice of appeal/petition.

9.  The applicant’s notice of appeal/petition was filed after 1 August 2021, when the new section 37ZT of the Immigration Ordinance came into effect.  The Board considered the applicant’s reason of delay.  It noted that, on the available information, the applicant was notified of the time limit in relation to the filing of such notice of appeal/petition [8]-[11].  Meanwhile, having considered the applicant’s explanation that the delay was due to lack of language assistance and that she had lost the files in transit to another prison, the Board found that such explanation had no evidential support and that the applicant had not exercised her due diligence in filing the notice of appeal/petition [12]-[13].

10.  Therefore, the Board refused to allow the applicant’s late filing of notice of appeal/petition against the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 31 August 2022 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant did not specify any ground.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  The question before this Court is whether the Board was correct in refusing to extend time to the applicant to file her notice of appeal in accordance with section 37 ZT of the Ordinance, the relevant parts of which I shall set out below.

“Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)”

16.  The Board had ascertained from the Duty Lawyer Service that the duty lawyer had, through an interpreter, explained to the applicant the deadline for the applicant to file her notice of appeal. The applicant had confirmed this by having signed a confirmation. The Board further considered the explanation given by the applicant for her delay in filing the notice of appeal.

17.  The applicant had given 2 reasons for her delay. The first reason is that there was no Vietnamese that she could ask how to write when she was in prison. The second reason is that she lost her file when she was transferred to another prison.

18.  The Board considered that the applicant was advised of the 14-day deadline for her appeal on 20 August 2021 (the date of the Director’s Decision is 17 August 2021). On 23 March 2022, when she was being detained in Castle Peak Immigration Centre, she wrote a letter to the Board requesting for document for lodging appeal.

19.  The Board rejected her first reason because the applicant did not provide any evidence as to what she did in trying to get somebody to assist her in filing the notice of appeal within the 14-day period. The Board reject the applicant’s second reason as it found that there was no evidence in writing as to when she lost the document for lodging appeal and what she did in trying to obtain the document within the period specified. The Board also said that there was no evidence in writing to show that the applicant had exercised all due diligence to file the notice [of appeal] within the period specified. The Board further found that there was no evidence in writing to show that the applicant had exercised all due diligence to file the notice [of appeal] within the period specified.

20.  Taking into account of the period of delay of 7 months and 24 days, the Board said it could not find any reason to allow the applicant’s late filing of the notice of appeal. It disallowed the filing of the notice of appeal. In effect, the applicant’s appeal was dismissed.

21.  It remains for this Court to consider whether the Board had exercised its discretion reasonably within the context of the Ordinance and the administrative law.

22.  It is clear that the Board had followed closely the statutory provisions under section 37 ZT of the Ordinance. It required evidence in writing from the applicant to show that she had exercised all due diligence to file the notice within the period specified, but failed to file the notice within the period because of circumstances beyond her control.

23.  The applicant should be able to tell the Board what she had done to prepare the notice of appeal and file it within time after she had been advised of the 14-day deadline. When she wrote to the Board for document for her appeal, she was, by then, out of time for about 6 months. It is, therefore, incumbent upon her to explain what she had done for her appeal during this period of time. Obviously, the Board rejected her explanation that there was no Vietnamese to advise her on how to appeal as there was no evidence in writing to support her allegation. This explanation is also not plausible as the applicant should be able to seek assistance from the authority in which she was being detained. For the reasons given above, the Board was justified to reject the applicant’s explanation of losing her file for her appeal.

24.  In the circumstances, the Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

25.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

26.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

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