NGUYEN BUI HIEN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1199/2024

[2025] HKCFI 1515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1199 OF 2024

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J U D G M E N T

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THE APPLICATION

1.  The 1^st applicant, aged 50, is the father and the guardian ad litem of the 2^nd applicant, his son and the 3^rd applicant, his daughter, both being twins, aged 14.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 23 November 2023 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant. Their application is late. Their application shall not be later than 3 months from the date of the Board’s Decision, which expired on 23 February 2024. Their application was filed on 25 July 2024, which is late for more than 5 months.

3.  The hearing on 4 December 2024 where the 1^st applicant was present was adjourned to 5 March 2025 for joining the 3^rd applicant and for the 1^st applicant to apply for legal aid for the children.

4.  On 5 March 2025, the applicants were absent. I shall deal with their application on the papers.

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

The applicants

6.  The applicants are nationals of Vietnam. The 1^st applicant sneaked into Hong Kong in March 2014 and he was repatriated voluntarily on 9 February 2018. On 15 August 2018, he and the 2^nd applicant, his son, sneaked into Hong Kong and they were repatriated on 3 May 2019. On 10 May 2021, the applicants sneaked into Hong Kong illegally and they raised a non-refoulement claim. They lodged a non-refoulement claim on the basis that, if refouled, they may be harmed or killed by the creditor and his subordinates because the 1^st applicant was unable to repay the debt from the creditor.

7.  The 1^st applicant and his ex-wife ran a business of electrical appliances, for which the 1^st applicant borrowed 2 billion Vietnamese Dong from his creditor, a loan shark, in November 2012. In May 2013, there was economic recession and they were unable to pay the interest. The Creditor and his subordinates demanded repayment of the loan. As the 1^st applicant was unable to pay up, they vandalized the shop and injured him with knife at the back of his neck and punching him, causing breaking of his teeth and bruises on his face. They threatened to kill him if he was unable to repay. On a second occasion, the creditor and his subordinates went to his shop where they chopped his son. He went to report the matter to police, but he was detained as one of the police officers was the creditor’s cousin. The creditor threatened to kidnap his children. He had to divorce his wife in order to keep her safe. He came to Hong Kong with his children.

8.  Details of the 1^st applicant’s story are set out in paragraph 6 of the Notice of Decision dated 26 October 2021 (the “Director’s Decision”).

The Director’s Decision

9.  The Director considered the applicants’ claims 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”).

10.  By way of the Director’s Decision, the Director assessed their claims jointly and dismissed their claims. The Director found that his alleged risk of harm by the creditor and his subordinates were assessed to be low; that there was no evidence that the state was involved; and that internal relocation is viable. [13]-[24]

The Board’s Decision

11.  The applicants jointly appealed the Director’s Decision to the Board. On 9 May 2023, the Board conducted an oral hearing for their appeal.

12.  The Board bore in mind the legal principles for the assessment of the evidence, in particular, the separate consideration of the specific child issues for the children as set out in the Court of Appeal case of Re Fabio Arlyn Timogan [2021] HKC 458 [8]-[12].

13.  Having considered the evidence, the Board agreed with the Director that the applicants have not made out their case in respect of any of the applicable risk. It also found that state protection will be available and internal relocation is viable if they return to Vietnam.

14.  It therefore dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

15.  The applicants filed Form 86 on 25 July 2024 for leave to apply for judicial review of the Board’s Decision.

16.  In the 1^st applicant’s affirmation in support of his application, the 1^st applicant has, insofar as the Board’s Decision is concerned, raised the grounds below:

(1)  the adjudicator had not taken on board the BOR 2 risk in its decisions and the Board’s Decision is wrong and unfair;

(2)  the adjudicator had placed too much reliance on the country of origin information without taking his personal background and experience into account;

(3)  the adjudicator was procedurally improper and unfair in assessment the evidence and he had demanded him to answer questions that he was not in a position to respond; and

(4)  the adjudicator was unfair to dismiss his appeal whereas he should have held in his favour instead.

DISCUSSION

17.  As mentioned in paragraph 2, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 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. I shall consider the merits of the applicant’s case.

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

20.  The grounds under paragraph 11 do not assist their application as they are the 1^st applicant’s bare assertions or opinions without any evidence in support. They are not valid to challenge the Board’s Decision[1].

21.  The Board had applied the appropriate legal principles to evaluate the evidence, taking into consideration of the child issues separately. There is no error in the application of the law or any procedural impropriety in the process; and the decisions are by no means Wednesbury unreasonable.

22.  The applicants fail to show that they have any realistic prospect of success in their intended judicial review of the Board’s Decision.

DISPOSITION

23.  I refuse to extend time for them to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

24.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd and the 3^rd applicants’ application a nullity.