PHAM VAN CUONG v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2650/2018

[2022] HKCFI 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2650 of 2018

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.  This is the applicant’s application for leave to apply for judicial review of the Decisions dated 15 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s BOR2 Decision”) as described below.

2.  The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with 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.  He entered Hong Kong illegally on 15 July 2014 and surrendered to the Immigration Department on 22 July 2014. On the date of surrender, the applicant lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the moneylender as he failed to repay the loan. 

5.  According to the applicant, he started to operate a fishing business and, to raise the capitals, he borrowed a loan from his moneylender.  However, in 2013, the fishing business collapsed, resulting in a total loss and the applicant’s incapacity to repay the loan.  From January 2013 to May 2014, the moneylender visited his house threatening to kill his family if he did not repay within the time limit.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out in paragraph 6 of the Notice of Decision dated 6 July 2016 by the Director (“the Director’s First Decision”) and paragraphs 5 to 9 of a decision dated 15 November 2018 by the Board (“the Board’s BOR2 Decision”) as referred to below.

The Director’s Decisions

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

a.  risk of torture under Part VII C 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”).

7.  By the Director’s First Decision, the Director refused his claim on the grounds of Torture risk, BOR3 risk and Persecution risk.  The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low because (i) the low frequency and intensity of the past ill-treatment from the moneylender were indicative of an unlikelihood of future harm [12]-[14]; (ii) state protection would be available to him [15]-[17] and (iii) internal relocation was an option open to him [18]-[22].  In the Notice of Further Decision dated 21 December 2016, the Director also rejected his claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that his right to life would be violated upon his return.

The Board’s Decisions

8.  The applicant sought to appeal the decisions of the Director.  His notice of appeal/petition was filed on 10 January 2017 (dated 29 December 2016), which was more than five months out of time for the appeal against the Director’s First Decision.  The applicant did not state any reasons for such delay in the notice of appeal/petition.  Upon inquiries, the Board was notified that the applicant had been detained in prison since 3 January 2017.  Despite a letter dated 14 June 2017 requiring him to provide the statement of reason for the delay was sent to the applicant in prison, the applicant did not reply [4]-[6].  As a result, the Board proceeded to consider whether it would allow the applicant’s late filing of the notice of appeal/petition against the Director’s First Decision. 

9.  The Board noticed that the applicant filed the notice of appeal/petition after the date of the Director’s Second Decision and opined that the time to appeal against the Director’s First Decision started to run from the date of the Director’s First Decision instead of the date of the Director’s Second Decision.  The delay was therefore serious and not insignificant [9]-[14]. Since the applicant had not provided any explanation for such lengthy delay, the Board refused to exercise its discretion to allow the late filing of appeal against the Director’s First Decision [15].

10.  Insofar as the Director’s Second Decision was concerned, the Board held an oral hearing on 21 August 2018 for the applicant’s appeal.  The applicant answered the Board’s inquiries and clarified matters related to his case with the assistance of an interpreter.

11.  The Board noticed that the applicant provided inconsistent accounts as to the amount of loan and he failed to provide any satisfactory explanations [14].  It also noted that the applicant gave contradictory evidence as to the reason for the business failure [15].  The Board also cast doubt as to when the applicant borrowed the loan and how long was the time limit for him to repay the loan [16]-[17].  Further, the Board found that the moneylender had never put the death threats into action and, even on the applicant’s evidence, he was never physically harmed by the moneylender [18].  Thus, the Board rejected the applicant’s version of events and refused to accept that the moneylender would harm or kill him upon refoulement [19].  In any event, the Board concluded that state protection and internal relocation were both available to the applicant [20]-[29].  For these reasons, by way of the Board’s BOR2 Decision, the Board dismissed the applicant’s appeal against the Director’s Second Decision. 

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 23 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he reiterated that he would be killed by the creditor if he returned to Vietnam.

DISCUSSION

14.  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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13(1) .… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.  It is arguable that time for lodging the appeal in respect of the Director’s First Decision should run from the date of the Director’s First Decision. The Director, by his letter dated 21 December 2016, had opened the option for the applicant to submit additional facts on all applicable grounds for non-refoulement protection. The letter’s first paragraph states:

“I refer to our letter dated 2 December 2016 by which you were invited to submit additional facts, if any, which you consider relevant to your non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights for the Hong Kong Bill of Rights (“HKBOR”), including right to life and Article 2 …”

18.  It will be advisable and reasonable to allow the applicant to appeal against the Director’s First Decision as the facts for the Director’s Second Decision on BOR2 risk, which the Board found within time, have to base upon the facts of the Director’s First Decision. In any event, the Board had considered the facts in the Director’s First Decision and made its findings too. From its findings, it is clear that the applicant had no valid ground to challenge the Director’s First Decision. I find that this arguable point will not affect the Board’s BOR2 Decision.

19.  The applicant does not have any valid ground to challenge the Board’s BOR2 Decision.

20.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

22.  I therefore refuse to grant leave to the applicant to apply for his intended judicial review.  Accordingly, I dismiss his 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