DINH KHAC CHAU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2551/2018

[2023] HKCFI 43

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2551 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 granted.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the application is dealt with on paper.

3.  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

4.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 24 June 2016 and surrendered to the Immigration Department on 6 July 2016.  On 11 April 2017, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Vietnamese government and his creditor.

5.  According to the applicant, he used to participate in a political group which sought to promote human rights in Vietnam from 1986 to 1987.  In 1989, he sneaked into Hong Kong but was deported back in 1996.  In 2010, he borrowed a loan from the creditor for his fishing business.  However, starting in June 2010, he was unable to afford the loan payments.  On 16 July 2010, the creditor brought five men to the applicant’s house, threatening and assaulting him with fists and iron rods.  Thereafter, in 2012, 2014, 2015 and 2016, the creditor constantly visited his house chasing for repayment and on one occasion assaulted him.  Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 20 October 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) there was no evidence showing that the government would persecute him for his previous participation in the political group [12]; (ii) the low intensity and frequency of past ill-treatment from the creditor indicated an unlikelihood of future risk of harm [13]; (iii) the threats, if any, were localized [14]; (iv) state protection would be available to him [15]-[21]; and (v) internal relocation was a viable alternative [22]-[24].

The Board’s Decision

8.  On 27 December 2017, the applicant filed his notice of appeal/petition to the Board, which was out of time [6].  In his explanation for the delay, the applicant stated that “…because I did not know the way, now I just find a person to take me…”[sic] [7].

9.  Nevertheless, the Board rejected his explanation as it noted that the applicant failed to produce any documents in support [11].  Further, the Board considered that there was no special circumstance which prevented the applicant from filing his notice of appeal/petition on time [12].  Thus, the Board refused to allow the applicant’s late filing.

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

10.  The applicant has filed Form 86 dated 13 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant said his life would be in danger if he returns to Vietnam as he is unable to repay the loan to the creditor.

DISCUSSION

12.  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 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).

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

14.  The issue before this Court is whether the Board was right to refuse to extend time to the applicant for late filing of the notice of appeal.

15.  The Board has not considered the merits of the applicant’s case as found by the Director. This is inconsistent with the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 where it held:

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

20. … …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

16.  Although the Board’s Decision predates the Court of Appeal’s decision, the legal principles nevertheless apply to this case. There is an obvious error of law committed by the Board in its decision.

17.  The Court notes that section 37ZT has been amended and was in operation on 1 August 2021, by which the Board does not have to consider the merits of the applicant’s case. However, the new legislation does not have retrospective effect for the present case.

18.  The applicant succeeds to show that he has a realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I therefore grant leave for the applicant to apply for judicial review of the Board’s Decision. The applicant shall issue the originating summons within 14 days after this Order in accordance with Order 53, rule 5(5) of the RHC.

 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