TRAN DINH NAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 84/2024

[2024] HKCFI 1179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 84 of 2024

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; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 8 January 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 25 November 2022 (the “Decision”) dismissing his application for late filing of two Notices of Appeal (“NOAs”) lodged with the Board on 9 and 17 August 2022. 

2.  The leave application was filed over 13 months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance andOrder 53, rule 4(1) of the Rules of the High Court, it was made more than 10 months out of time.  Leave to file the leave application out of time is required.

Leave to file the leave application out of time

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Merits is usually a very important factor.  Where the delay is not very substantial, merits is usually the determinant factor.  But as was 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”. 

4.  The delay of more than 10 months in the context of a three months’ period for seeking judicial review is very substantial.  The Applicant gave no explanation for the delay in his Form 86 or supporting affirmation.  At the hearing, he explained that he had been put in prison custody since July 2021 and had never received the Decision.

5.  The Applicant was in prison custody when he lodged his two NOAs in August 2022.  In the NOAs, he gave Tung Tau Correctional Institution as his address.  According to documents discovered from the Board, the Decision was indeed sent to that address.  The delivery by Hong Kong Post is usually very reliable.  Correspondence received by inmates in prison institutions are documented.  The Applicant’s assertion of non-receipt is not supported by record from the Tung Tau Correctional Institution.  It is highly incredible.  Instead of requiring him and therefore the prison institution to disclose the record, the Court gave him the benefit of doubt and accepted that the Decision had been lost in the course of post and further considered his explanation.  He still has further hurdles to explain why all of a sudden after 13 months he raised the leave application.

6.  The Applicant’s further explanation is that while in custody he had no guidance or advice about seeking judicial review until a Vietnamese inmate arrived in December 2023 and taught him and assisted him.  That inmate had a friend living outside of prison institution who obtained a Form 86 for him.  He completed the Form 86 and passed it to that friend for filing with court.  His allegation that he received no guidance or assistance about seeking judicial review while in prison custody is contrary to the prison practice known to the Court.  To the Court’s knowledge, there are welfare officers in the correctional institutions accessible to inmates to assist them with making of affirmations and filing of documents with the court.  In fact, on the Applicant’s own admission, his supporting affirmation was affirmed by him before the prison superintendent.  His explanation is incredible.  The delay in this case is so substantial and his explanation is so incredible that extension of time to file the leave application is refused on the ground of inordinate delay.  But, for completeness and in the alternative, the Court also explored into the merits of his intended judicial review.

The background

7.  The Applicant is a Vietnamese national.  He entered Hong Kong illegally on 20 November 2020 and he was arrested on 23 November 2020.  On 30 November 2020, he raised a non-refoulement claim.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6].  His claim was dismissed by the Director’s Notice.  He filed his first NOA against the Director’s Notice on 9 August 2022; but he did not state his reasons for the late filing in that first NOA.  He then lodged a second NOA on17 August 2022 attributing the late filing to the authorities’ failure to provide him with interpretation services. The two NOAs were more than 10 months’ out of time.  By its Decision, the Board refused to allow the late filing of the two NOAs.  He now applies for leave to apply for judicial review of that Decision.

8.  The issue in the appeal before the Board is the Applicant’s reasons for the late filing of the NOAs. Thus, the Applicant’s claim for non-refoulement protection is irrelevant for the purpose of this leave application.  However, his case for non-refoulemnent protection and the finding of the Director are summarised hereunder for completeness and by way of background. 

The Applicant’s case

9.  The following summary of the Applicant’s claim is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.   In gist, he claims he would be harmed by a moneylender upon his return to Vietnam because he will be unable to repay his debt owed to the moneylender.

10.  The Applicant, now aged 24 was born in Haiphong.  He received ten years of education and has worked as a construction worker after completing his military duty.  In May 2020, he borrowed 800 million Vietnamese Dong (“VND”) from the moneylender at a monthly interest rate of VND 50 million.  The principal was due within two years.  The moneylender had a lot of connections and was a powerful gangster in the local area. 

11.  The Applicant paid interests for two months.  Then he lost his job after the pandemic and was unable to pay interest thereafter.  Since July 2020, the moneylender made numerous phone calls to him and threatened to kill him if he failed to pay back the loan. 

12.  In mid-July 2020, the moneylender and three of his associates visited the Applicant’s home to demand repayment. The Applicant pleaded for more time but the moneylender beat him with wooden sticks for 5 to 10 minutes and threatened to maim or even kill him if he failed to come up with the money (the “first incident”).  The Applicant suffered superficial wounds from the attack which he treated by self-medication.

13.  The moneylender visited his home from time to time, but he managed to avoid the moneylender and was not harmed during those visits.  One day in August 2020, the Applicant ran into the moneylender and his associates.  They beat him and kicked him for about ten minutes until he lost consciousness (the “second incident”).  He was hospitalized for two days.

14.  The Applicant hid in his uncle’s home some 2 to 3 kilometres away from his home for four months.  In early November 2020, the moneylender visited his uncle’s house to look for the Applicant.  Out of fear, he fled to Hong Kong.  Since coming to Hong Kong, he learnt from his sister that the moneylender had been to his home from time to time but they did not harm her.

15.  The Applicant did not seek help from the Vietnamese police because he was afraid of retaliation by the moneylender. He said that the police would not help him because he was at fault for owing money to the moneylender.  He claimed that internal relocation would not be viable because the moneylender could locate him anywhere in Vietnam through his connections.

The finding of the Director

16.  The Director noted that the moneylender did not cause the Applicant serious injuries in the two incidents.  From that, he drew the inference that the moneylender had no intention to cause him serious harm.  He therefore assessed the Applicant’s risk of harm from the moneylender to be low.

17.  He rejected the Applicant’s claim that the moneylender was well-connected and could locate him anywhere in Vietnam as being based on hearsay evidence and as speculative.  The Applicant was able to hide from the moneylender for four months in his uncle’s home.  This showed that the moneylender was not as well-connected as the Applicant claimed.  The Director found he could safely relocate to Ho Chi Minh City or Da Nang to avoid the moneylender.

18.  On the basis of authoritative and credible country of origin information, the Director noted that though corruption was a serious problem in Vietnam, the Vietnamese government had made significant progress in combating corruption.  There was nothing to show that the police would be unwilling or unable to assist the Applicant upon his return, as the Applicant alleged. 

The finding of the Board

19.  Under section 37ZS of the Immigration Ordinance, an appeal against the decision of the Director must be lodged within 14 days after the Notice was served on the applicant.  Section 37ZT(1)(a) mandates a late applicant to state his reasons for the late filing in Section 5 of the NOA and provide supporting documentary evidence.  The Notice was issued on 4 October 2021.  The Applicant filed the first NOA on around 9 August 2022, which did not contain any explanation for the late filing.  He then filed the second NOA on 17 August 2022 with an explanation for the late filing.  His reason for the late filing as given in Section 5 of the second NOA is: 「本人收到此文件後，但並未委派任何翻釋人員所以不懂填寫，以至延誤」。(Translation: “After receiving the Notice, no interpreter was assigned (to me).  I could not file in the NOA and hence the delay”).  Even if the filing of the second NOA were given retrospective effect, it was filed more than nine months out of time. 

20.  The Board rejected his explanation.  It was satisfied that the Notice had been duly served on the Applicant’s legal representative on 4 October 2021 and the time limit for lodging an appeal was stated in the Notice.  According to the usual practice, the content of the Notice must have been explained to the Applicant and he must have been advised of his future course of action to take if he wished to challenge the Notice. 

21.  The Board also noted that the Applicant chose to file the second NOA using a form in Chinese.  He put down in Chinese that the language he speaks is Vietnamese and the reason he gave for the late filing in that NOA was completed in Chinese.  From these facts, the Board inferred that the Applicant must have had some language assistance in filling out the form.  It therefore did not accept that the Applicant failed to complete the NOA due to a lack of interpretation service or that he had exercised all due diligence to file the NOA within the 14-day period or that he failed to file the NOA within that period because of circumstances beyond his control.  It therefore held that there was no good reason for the default and refused the late filing of his NOA.

Legal principles applicable to judicial review

22.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[7].

Grounds for judicial review

23.  The Applicant advanced the following six grounds of application in his Form 86:

(1)  The Decision was not reasonable and unfair.

(2)  The Director failed to give proper weight to the presence of state acquiescence.  She was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.

(3)  The Board acted unfairly by placing too much weight on country of origin information without having regard to her personal background and experience.

(4)  The Director failed to attain the high standard of fairness as required by the Wednesbury test in failing to take her arguments about corruption and incompetency of the administration in her country into account.  .

(5)  The Board acted unfairly and improperly when assessing whether to accept or reject her explanations and unreasonably required her to respond to questions which she was not in a position to respond.

(6)  The Decision is irrational because on the evidence the Board should have allowed the appeal.

All these grounds are directed at the Director’s decision in the Notice.  They aim at the merits of the Applicant’s non-refoulement claim. They have nothing to do with the Applicant’s explanation for the late filing of his NOAs, which is the subject matter of his intended judicial review. 

24.  In his supporting affirmation, the only complaint he raised was that the Board’s Decision is unfair and unreasonable and he will be at risk of being killed if returned to Vietnam.  He had been invited by the Court via its letter dated 23 January 2024 to advise the Court of his first language and to file submissions.  He did not respond.  Though this ground is, on the face, directed at the Board’s Decision refusing his late filing, in substance it is directed at his risk of harm if refouled, ie merits of his non-refoulement claim.  The Board has not made any decision on his risk of harm.  It only refused his reasons for the late filing.  This ground is therefore also irrelevant.

25.  All these grounds are irrelevant as challenges to the propriety of the Board’s Decision.  The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that his explanation that the authorities failed to provide him with interpretation service is not a good reason for the delay in filing his NOAs, that he had failed to exercise diligence in filing the NOA within time and was not prevented from doing so by reason of circumstances beyond his control.  In effect, he is seeking to challenge the Board’s finding of the above facts.  That is not permissible.  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. 

Discussion

26.  The guiding principle in determining whether to grant relief from consequence of failure to comply with statutory time limit is the three-stage approach as stated by the English Court of Appeal in The Secretary of State for the Home Department v Begum[8].  The Board’s Decision was made on the basis of the primary facts which are not in dispute or are incontrovertible, such as service of the Notice on the Applicant via the DLS, the date of filing of the NOAs etc.  At the hearing, the Applicant did not challenge these findings of the Board.  He only half-heartedly said he had no recollection.  He could have no valid complaint about such finding of fact by the Board.  It was on the basis of these primary facts found that the Board made its secondary finding of fact.  Though Begum was not quoted by the Board, the Board actually followed the principle in Begum to the letter.  It identified the more than nine months’ delay as a serious and significant failure to comply with the rules.  It rejected the Applicant’s explanation and found there was no good reason for the failure.  It evaluated all the circumstances of the delay and found it is fair and just to refuse the late filing and that are no special circumstances which would make it unjust not to allow the late filing.  These are finding of fact solely within the realm of the Board which the Court may not intervene save for errors of law, procedural unfairness or irrationality in the Decision.  The ultimate decision was reached by applying the law to these facts.  That is a mixed finding of facts.  Insofar as it is a finding of fact, it is also within the realm of the Board to make which this Court may not intervene.  Insofar as it is a finding of law, it is absolutely correct.  The Board had regard to the relevant statutory provisions, the Applicant’s explanation for the late filing and all the circumstances.  It correctly adopted the approach in Begum and reached the conclusion that it is fair and just to refuse the late filing.  It was unable to find any special circumstances which might make it unjust not to allow the late filing.  It was for all these reasons that the Board refused the late filing.

27.  The Court is satisfied that the Board had correctly directed itself on the law and key legal principles applicable to the late filing of NOAs.  The Decision is essentially one of finding of fact which is solely within the realm of the Board to make, which the Court on a judicial review will not intervene save for error of law, procedural unfairness and irrationality.  The Applicant confirmed at the hearing that he had no complaint on these grounds.  The Court could detect no errors of law in the Decision. The Board observed a very high standard of fairness.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The Applicant has no arguable grounds for judicial review.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

28.  Accordingly, extension of time to file the leave application and leave to apply for judicial review are refused.

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