DOAN VAN THAI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1690/2018

[2020] HKCFI 764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1690 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

(1)  Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 4 May 2018 be refused; and

(2)  Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)  If the applicants intend to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, they must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)  When filing the application for leave to appeal, the applicants must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)  Liberty to apply.

Observations for the Applicants:

THE APPLICATION

1.  The applicants are husband and wife. They are not legally represented and they did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicants to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicants did not attend the hearing on 27 August 2019. I shall therefore deal with their application on paper

The applicants

2.  The applicants are Vietnamese nationals. The husband came to Hong Kong illegally on 30 July 2014 and was arrested by police. He was referred to the Immigration Department the next day. He lodged a non-refoulement claim on 1 August 2014. The wife came to Hong Kong illegally on 29 May 2015. On 1 June 2015, she lodged a non‑refoulement claim.

3.  In support of their claim, they said that if refouled, they would be harmed or killed by the creditor because they were unable to repay the loan.

4.  They had borrowed 900 million Vietnam currency for their goldsmith business in 2008. They paid the creditor interest, leaving the principal intact. In 2013, their business was not doing well and it finally collapsed. The creditor brought other people with weapons to their shop and vandalized it. Later, they went to their home and vandalized it. They also hit the husband with sticks causing bruises over his body. They threatened to kill them. They had gone to the police to report the case. But the police refused to take over the case, saying that it was a private monetary business. They sold their house to repay the creditor. But the sales proceeds were unable to make full payment to the creditor. They had attempted to move to other places in order to avoid the creditor. The creditor went to the husband’s parents’ house to look for them. They were scared and they decided to leave Vietnam. The husband had gone to Thailand, but he did not feel good with Thailand. They finally decided to come to Hong Kong. They have been in contact with the husband’s parents, who told them that the creditor and his people were still looking for him.

The Director’s Decision

5.  The Director considered their application in relation to the following risks:

a.  risk of torture under Part VIIC 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”).

6.  By Notice of Decision dated 26 April 2017 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated.

The Board’s Decision

7.  The applicants appealed to the Board against the Director’s Decision. Having considered the applicants’ case, the Board took the view that the materials on the file were sufficient for the Board’s determination without any further clarification from the applicants. It decided to deal with their appeal on paper without a hearing.

8.  By Decision dated 4 May 2018 (“the Board’s Decision”), the Board rejected their appeal and confirmed the Director’s Decision.

9.  The Board considered the applicants’ evidence and, for the reasons set out in the Board’s Decision came to the facts below.

a.  Vietnam government has been taking steps to stem corruption in Vietnam with effects [51 & 52] and there is evidence to show that Vietnam government has the capability of combatting crimes [64].

b.  The applicants failed to established that the treatments they received from the creditor had reached the minimum threshold of torture for BOR 3 risk [57].

c.  The applicants failed to establish Persecution risk [67].

d.  The applicants failed to establish Torture risk [70].

e.  There is no evidence to show that they have BOR 2 risk if they return to Vietnam [72].

f.  Internal relocation is an option open to them [81].

Application for leave to apply for judicial review

10.  They filed Form 86 dated 21 August 2018 for leave to apply for judicial review of the Board’s Decision and the Director’s Decision respectively. Their application is late as the Board’s Decision is dated 4 May 2018. This Court will consider the merits of their application in order to determine whether time for their application should be extended.

11.  In their affirmation, they maintained that they would be in danger if they returned to Vietnam.

DISCUSSION

The Director’s Decision

12.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeals and made its Decisions.

13.  The applicants has not set out any exceptional circumstances.

14.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

15.  The applicants’ application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss their application.

The Board’s Decision

16.  The Board was right to deal with their appeal on paper under the accepted facts, which would not allow them to claim non-refoulement under the law and Convention.

17.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board had committed any error in its application of the law or in finding of the facts.

18.  The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

19.  Since the applicants’ application for judicial review has no reasonable prospect of success, I refuse to grant them extension of time for their application for leave to apply for the intended judicial review. Accordingly, I dismiss their application.

20.  It is furtherdirected that:

a.  If the applicants intend to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, they must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.  When filing the application for leave to appeal, the applicants must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.  Liberty to apply.

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