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

HCAL 168/2022

[2022] HKCFI 1300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 168 of 2022

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 Decision dated 3 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 28 February 2022 is late for over 3 years and 4 months. I shall deal with this issue below.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

The applicant

3.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 23 April 2016.  Two days later, he surrendered to the Immigration Department and lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Phan Van Van (“PVV”).

4.  According to the applicant, in mid-2014, he and his wife decided to expand their steel management business and thus borrowed a loan from PVV.  By the end of 2015, the competition became fierce.  The applicant’s business failed and he was unable to repay the loan.  Since then, PVV and followers had been visiting his company and threatening to kill him if he failed to repay the loan.  The applicant fled to Ho Chi Minh and Mong Cai before eventually escaping to Hong Kong for protection.  Details of his claim are set out in paragraph 7 of the Notice of Decision dated 25 July 2017 (the “Director’s Decision”) and paragraphs 8 to 19 of the Board’s Decision as described below.

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

(1)     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)     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”);

(3)     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

(4)     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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to him [14]-[18]; and (iii) internal relocation was a viable alternative [19]-[25].  

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 12 June 2018 for his appeal.  Nevertheless, the applicant failed to attend the scheduled hearing.  Pursuant to section 15 of schedule 1A of the Ordinance, the Board sent the notice to the applicant and invited him to provide written explanation for his absence.  The applicant did not respond to the notice.  Thus, the Board proceeded to determine the applicant’s appeal on paper [48]-[52].

8.  Having considered the applicant’s evidence, the Board made the following findings.  The Board found that the applicant’s evidence about the loan vague and general; that it was illogical for the applicant to borrow such a large sum and unreasonable for PVV, a friend of his parents, to harm or kill him; and that there was no evidence of police inaction or of PVV continually looking for him or his wife elsewhere [55].  Further, the Board found that there was no state involvement in this private monetary dispute [56].  Meanwhile, country of origin information showed that state protection and internal relocation were both available to the applicant [57]-[58].  For these reasons, the Board rejected his claim and dismissed his appeal.  

Application for leave to apply for judicial review

9.  The applicant filed Form 86 on 28 February 2022 for leave to apply for judicial review of the Board’s Decision.

10.  In his affirmation in support of his application, he said the Board had underestimated his dangerous situation in Vietnam in relation to torture, BOR2 risk and BOR3 risk.

DISCUSSION

11.  As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

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 CA, §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.  As the applicant was absent at the hearing before the Board, the Board had assessed the evidence before it and found that the applicant’s evidence was incredibility, giving reasons in support of its findings. The Board is entitled to make such findings as there is no explanation for the applicant’s absence up to date. The Board further found that the applicant’s case is a private matter without any state involvement. State protection is available to him and internal relocation is an option open to him, which he did not dispute in his affirmation.

15.  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.”

16.  The applicant has not raised any valid ground to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

19.  I therefore refuse to extend time for the applicant to apply for leave to apply for 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