TRAN THI LAN HUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1254/2018

[2021] HKCFI 529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1254 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

2.  The applicant applies for leave to apply for judicial review of the Decision dated 4 May 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Form 86 was filed on 3 July 2018.  This application is late.  I shall deal with this issue below.

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

The applicant

4.  The applicant is a citizen of Vietnam.  She left Vietnam for Hong Kong via China on 19 September 2014.  She entered Hong Kong illegally on 21 September 2014 and was arrested by police on 24 September 2014. On 14 October 2014, she lodged her non-refoulement claim with the Immigration Department.

5.  The applicant claimed that, if refouled, she would be harmed or killed by her creditor called Hau because she had borrowed from him a loan of one billion Vietnam currency, which she was unable to repay. She borrowed the loan in early 2010 for her business. She was unable to repay the monthly interest since 2013.  Hau had brought other people to chase her for the loan.  They took away the machinery and goods.  They kidnapped her and her children.  They forced her to traffic dangerous drug for them.  She refused as it is an offence punishable by death penalty.  They hit her and her children and they suffered injury.  She managed to escape with her children.  They hid themselves in friends’ places.  She then came to Hong Kong.  The details are contained in paragraph 6 of the Director’s Decision described below or paragraphs 19-31 of the Board’s Decision.

The Director’s Decisions

6.  The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C 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 April 2016 (“the Director’s Decision”), the Director refused her claim on Torture risk, BOR 3 risk and Persecution risk respectively for the reason that there was no substantial ground for believing that she would be in danger of being harmed or killed by Hau and/or his followers upon her return to Vietnam [12]; that state protection would be available to her [16] and that internal relocation was an option open to her [19].   By Notice of Further Decision dated 28 March 2017, the Director rejected her claim on BOR 2 risk on the same facts.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and the Director’s Further Decision and attended the hearing on 10 March 2017.

9.  The Board rejected her appeal and confirmed the Director’s Decision and the Director’s Further Decision

10.  The Board considered the applicant’s evidence and made the findings below.

(1)  It was a money dispute between the applicant and Hau and there was no evidence that Hau was related to the authority.  There was no evidence that he had inflicted severe pain or suffering, whether physical or mental, on her or her children. [37-38]

(2)  The applicant had not even attempted to seek police protection. [38]

(3)  There were no substantial grounds for believing that the applicant would be subjected to torture if she returned to Vietnam. [39]

(4)  For the same reasons, BOR 3 risk was rejected. [42]

(5)  There was no evidence to establish BOR 2 risk. [43]

(6)  Persecution risk did not apply to her case. [45-46]

(7)  Internal relocation is an option open to her. [48-49]

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision.  She said in her affirmation that it was unreasonable for the Board to say that she could return to Vietnam.  She was unable to repay her loan.  As a result, the loan shark forced her to traffic dangerous drug for them.  She refused to do so as it is an offence punishable by death penalty.  They assaulted her.  They had gone to her home looking for her.  Her son was scared and tried to run away.  He was stopped by the loan shark on the way and they had assaulted him seriously.  He had to be hospitalized.

DISCUSSION

12.  The applicants filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision and is therefore late.  The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

“39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

I shall now consider the merit of the case.

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  In a nutshell, the Board rejected her evidence on the facts in support of her claim.  See paragraph 10 above.

14.  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.”

15.  The applicant’s grounds in support of her application had been dealt with by the Board. For the reasons the Board had given, it came to its decisions, giving the reasons above in paragraph 10.

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

17.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

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