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HCAL 1676/2018
[2019] HKCFI 3140
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1676 of 2018
BETWEEN
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Vu Huu Hoi |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 K.W. Lung:
(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 8 May 2018 be refused; and
(2) Application for leave to apply for judicial review be dismissed.
IT IS FURTHER DIRECTED that:
(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and
(5) Liberty to apply.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).
2. This is an ex parte application and the applicant acted in person and he did not request a hearing before the court. The Court, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain to the applicant the purpose of judicial review and to enquire from him if he had had a fair hearing before the Board. At the hearing, this Court pointed out to him that he did not have the Board as the party. He therefore applied for leave, which was granted, to add the Board as the respondent. He requested this Decision written in English.
The applicant
3. The applicant is a national of Vietnam. He came to Hong Kong illegally on 15 January 2015. On 24 June 2015, he was arrested by police. He lodged a non-refoulement claim on 29 June 2015 and 4 August 2015 respectively.
4. He claimed that if refouled, he would be harmed or killed by the creditors and the creditor’s elder brother and his subordinates in Vietnam for the reason that he was unable to pay off the debt.
5. In 2013, he set up his business selling construction materials by borrowing money from the creditor. For the first three months, he was able to pay the interest. However, in August 2013, he ran into financial difficulty as his clients failed to pay for the materials delivered. The creditor had chased him for repayment of the loan and the incidents are as follows.
a. September 2013: the creditor came to his house with three other people demanding repayment of the loan and the interest. They did not harm him on this occasion.
b. They came to his house again on a day in December 2013, the creditor came with five subordinates. They brought with them knives and swords. Upon hearing that he was unable to pay, they were very angry. They assaulted him and threatened that would come every month to demand repayment of the loan. He was injured with bruises on his face and his nose and mouth bled. He did not report to police as he knew that those people were connected with police.
c. In January 2014, the creditor came with other five people. Again, he was unable to pay and they attacked him with knives and swords and fists. The attack lasted for some 15 minutes. His head was wound by an 80 cm cut. They then stopped and warned that they would come a month later. He went to a nearby clinic for medical treatment. He took pain-killer. His head had a scar of knife-cut.
d. He went to live in his friend’s boat for about three months. In a day in April 2014, he saw the creditor’s people. He jumped into the river and swam to another friend’s boat. But those people were approaching him. He jumped into the river and escaped ashore. He then stayed in another friend’s house for about three months.
e. He was living in fear. In January 2015, he decided to leave Vietnam and came to Hong Kong through China.
The Director’s Decisions
6. The Director considered his application in relation to the following risks:
a. risk of torture under Part VIIC 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 Notice of Decision dated 12 August 2016 and another Notice of Further Decision dated 20 March 2017, collectively called (“the Director’s Decisions”) the Director refused his claim for the reason that his claim was not substantiated.
The Board’s Decision
8. The applicant appealed to the Board and attended a hearing before the Adjudicator.
9. By Decision dated 8 May 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.
10. The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to its conclusion that all the stories were fabricated by the applicant. He set out the reasons below.
a. The applicant said that those incidents were his bitterest life experiences. Yet, he got the amount of loan wrong. [24 & 28]
b. His story that on the first incident, the creditor was lenient with him and agreed to extend the time, which is unreasonable. [39]
c. That the creditor only went to him once a month for repayment of the loan was unbelievable. [43]
d. There were so many contradictions that the Board could not accept that he was ever tortured. The Board therefore rejected all his evidence that he had borrowed money from the creditor or he was assaulted. The scar on his head might not be related to his debt. [50-52]
11. The Board found that, given the stories were true, the applicant’s incident had nothing to do with the state [58-60]; there should be state protection for him [73] and he had an option of relocation. [77].
Application for leave to apply for Judicial Review
12. In his Form 86 dated 20 August 2018, the applicant applied for leave for judicial review of the Board’s Decision.
13. The applicant did not state any reasons in support of his application in his affirmation dated 20 August 2018.
DISCUSSION
The Board’s Decision
14. The applicant’s application is late for 12 days (Board’s Decision being 8 May 2018 and Form 86 filed on 20 August 2018). In Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28, the Court of Appeal held that the applicant cannot proceed with the application for leave for judicial review without extension of time for them to file their application out of time.
15. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.
16. Though the period of delay is short, nevertheless, I shall consider the merits of the case.
17. The applicant appeared before me. He confirmed that he was able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decisions to him. His friend had also explained the Board’s Decision to him.
18. I put the Board’s findings above to him and asked him if he had any comments on them. His only comment was that the Board should not reject his evidence and disbelieved him.
19. It is quite obvious that, apart from some fundamental facts such as the nationality, the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim.
20. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 had held that the facts relating to the non-refoulement claim are to be found by the Immigration Officer and the Adjudicator.
21. The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.
CONCLUSION
22. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to extend time for him to apply for leave for the intended judicial review. Accordingly, I dismiss his application.
23. It is further directed that:
(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondents and whether the application for leave to appeal shall be determined on paper;
(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and
(5) Liberty to apply.
Dated the 27th day of December 2019
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(Mike Mak) |
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for Registrar, High Court |
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 27/12/2019
Vu Huu Hoi
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 27/12/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4534/16/8/253/V374
Director of Immigration
2nd Putative Respondent’s ref. no.: QA T/C 1468/16 and
RBCZ 9000341/17 (formerly RBCZ 12629/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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