DINH NGOE LUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL780/2022

[2024] HKCFI 2057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 780 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

1.  Extension of time to apply for leave for Judicial Review be refused;

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 filed on 17 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) dated 6 August 2021. 

2.  In his supporting affirmation, the Applicant annexed a copy of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 6 August 2021(the “Decision”) dismissing his appeal against the decision of the Director in his Notice of Decision dated 30 March 2021 (the “Notice”).  The Board had made a decision dated 6 August 2021 relating to the Applicant, but the Director had not.  Under such factual matrix, it is obvious that the Applicant’s intention was to seek a review of a decision dated 6 August 2021 made in relation to his non-refoulement claim but was mistaken about the identity of the decision maker.  His real intention was to seek judicial review of the Decision of the Board dated 6 August 2021 and not the decision of the Director of Immigration.

3.  If this leave application is to proceed as the Applicant pleaded, it has to be dismiss for want of subject matter.  To give effect to his real intention, the leave application has to be amended by making the Board the proposed putative respondent and its Decision as the subject matter of the proposed judicial review.  For reasons as stated below, the leave application even if so amended would be badly out of time and in any event lacking in merits.  The proper course would be to simply refuse him extension of time to apply and to dismiss his leave application.

The Applicant’s case and the Board’s Decision

4.  The Applicant is a Vietnamese, now aged 35.  He had 12 years of education and had worked as an air defense soldier, photographer and an entrepreneur trading used vehicles.  He entered Hong Kong illegally on 24 May 2020.  He was arrested on the next day.  On 1 June 2020, he raised a non-refoulement claim.  He claimed that he had borrowed 1.5 billion Vietnamese Dong from a moneylender to contribute in a business with his friend trading in used cars.  He could not repay.  He was assaulted and threatened by the moneylender.  In March 2020, he sold his flat to partly repay his moneylender. But he could not repay the balance.  He divorced his wife and fled to Ho Chi Minh City to live with his friend.  Then he sneaked to Hong Kong.  In gist, he claims that he will be tortured and killed by the moneylender if he is returned to Vietnam for not being able to repay his debt.

5.  In essence, the Board found inconsistencies in his evidence and that he had no awareness about the business or the basic information about the procedure for starting a business selling used cars.  The Board found him incredible and rejected his evidence in its entirety.  On that basis, the Board found he had failed to establish that he will be subject to any of the proscribed risk of harm if returned.  The Board went further and found even on the case as he asserted, as a matter of law, he is not entitled to protection under any of the four applicable grounds under the USM.  Primarily, this is because the risk of harm he will face on his return would not attain the minimum level of severity, that the ill-treatment he will suffer had nothing to do with race, religion, nationality, membership of a particular social group or political opinion, that the moneylender was not acting on behalf of the Vietnamese government, that state protection will be available and internal relocation feasible.  Hence, the Board dismissed his appeal.     

Discussion

6.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  By 17 August 2022, his application is almost nine and half months out of time.

7.  In considering whether to grant extension of time in making a leave application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[1]. Merits is usually a very important factor.  But, it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone without consideration of merits.

8.  On 26 April 2024, by a letter addressed to the Applicant at his address in Castle Peak Bay Immigration Centre as provided by him in his Form 86, this Court invited him to file an affirmation or statement within fourteen days of the letter stating his explanation for taking nine months to make the leave application.  He was also informed that unless the directions are complied with his leave application may be dismissed for want of prosecution.  The letter was returned as he had moved without updating the Court with his change of address.

9.  On 20 May 2024, a similar letter was sent to him by post to his new address in Shamshuipo as discovered from the Immigration Department.  The letter was not returned but he did not respond even after a lapse of two and half months. 

10.  As the Applicant had not requested an oral hearing and after having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.  Hence, the Court processed his leave application without an oral hearing. 

11.  Despite clear indication in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither.  In his supporting affirmation, he only annexed a copy of the Decision and asserted that he will be tortured by his creditor, if returned to Vietnam.

12.  The Applicant never informed the Court about his up-to-date address since filing the Form 86.  He did not comply with the Court’s directions requiring explanation for the delay in filing the leave application.  A satisfactory explanation is an essential requirement he has to meet before the Court will consider his late leave application.  His conduct in not updating the court about his change of address and deliberate refusal to comply with the Court’s direction evinced a lack of intention to prosecute his leave application.  It conduct also resulted in delay in the processing of his leave application and therefore the non-refoulement process.  It is an abuse of legal process.  There is no reason why this Court should grant him extension of time to aid and abet him in abusing its legal process.  As the Applicant has no explanation for the very substantial delay, extension of time to apply is refused and his leave application is dismissed for want of subject matter. 

13.  Having come to the above conclusion, there is no need to consider merits of the leave application.  Nevertheless, for completeness, merits of the leave application, if amended, are considered below.

14.  The Applicant has not advanced any grounds of judicial review.  In his supporting affirmation, he only reiterated his fear that he will be tortured by his moneylender, if returned to Vietnam.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant’s evidence incredible and rejected his case in its entirety.  Hence, the Applicant had failed to establish the factual basis in support of his claim for protection. As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal.  It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The alternative basis of the Board’s Decision is that even on the Applicant’s case as he asserted, he is not entitled as a matter of law to protection under any of the four applicable grounds under the USM. 

15.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  Even if the leave application were amended and allowed to proceed, the proposed judicial review has no realistic prospect of success and has to be dismissed.  

16.  Accordingly, extension of time to apply for leave to apply for Judicial Review is refused and the leave application dismissed.

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

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