HOANG THI HOI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2954/2019

[2025] HKCFI 695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2954 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which refused to extend time for her to file her notice of appeal out of time.

2.  The Board’s Decision is dated 17 January 2020 whereas Form 86 for her application was filed on 9 October 2019, before the Board’s Decision was issued. I shall assume that the applicant issued Form 86 before the Board issued its decision, thinking that the Board would disallow extension of time for her to file the notice of appeal. I shall deal with her application and consider the Board’s Decision on this basis. I consider that this decision will not be prejudicial to any other party.

3.  The applicant did not request an oral hearing. I shall deal with her application on paper.

4.  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 applicant

5.  The applicant, aged 43, is a national of Vietnam. She entered Hong Kong illegally from China and surrendered to the Immigration Department on 4 November 2015. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her creditor and his followers because she was unable to repay the loan from the creditor.

6.  According to the applicant, in 2014, she borrowed a loan of 500 million Vietnamese Deng from her creditor to expand her business. She closed her business in November 2014. Her creditor and his people demanded repay of the loan. They had gone to her home and vandalized it between 2014 and 2015. They did not hurt her or her family. On 30 October 2015, she left Vietnam for China. She then sneaked into Hong Kong by boat. Details of her story are set out in paragraph 6 of the Notice of Decision dated 21 April 2017 (“the Director’s Decision”).

The Director’s Decision

7.  The Director had rejected her torture claim. Therefore, the Director considered the applicant’s claim 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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reasons that: (i) her claimed risk of torture upon her return is assessed to be low; (ii) state protection will be available to her; and (iii) internal relocation is viable. [11]-[23]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. However, she was late in filing the notice of appeal. The applicant filed Form 86 dated 29 October 2019, which was received by the Board on 31 October 2019.

10.  Having consider section 37ZT of the Ordinance and the applicant’s explanations for the delay, the Board refused to extend time for the applicant to file her notice of appeal, effectively dismissing her appeal, for the reasons below:

(1)  there was no valid explanation has been given by the applicant for the delay [11];

(2)  the applicant has not raised any special circumstances for her delay [18];

(3)  the delay is two and a half years and is both significant and serious [21];

(4)  her explanation that she had lost the set of forms was not acceptable to the Board [22];

(5)  the Board had considered the merits of the applicant’s case; that the creditor had not hurt her or her family for her past default of payment, there would be no risk that she would suffer harm if she returns to Vietnam [29].

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

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

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

15.  In my view, the Board, having considered the merits of the case, was entitled to come to its views of refusing to extend time to the applicant to file her notice of appeal. I also consider that the Board’s analysis of the merits of the applicant’s case is logical and reasonable.

16.  The applicant has raised no valid ground to challenge the Board’s Decision.

17.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.