DONG DUC DAI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1805/2018

[2020] HKCFI 808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1805 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 7 May 2018 be refused; and

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

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends 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, he 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 applicant 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 Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 7 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  The applicant is not legally represented and he 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, by letter, invited the applicant 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 applicant attended the hearing on 26 November 2019.

3.  Leave was granted to the applicant to amend Form 86 by adding the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is a Vietnamese national. He came to Hong Kong on 1 July 2016 illegally. He surrendered to the Immigration Department on 4 July 2016. He lodged his non‑refoulement claim on 9 August 2016. He admitted that he had illegally entered Hong Kong in 1996, 1997 and 2009, was convicted of immigration offences and was sentenced to imprisonment.

5.  He claimed that if refouled, he would be harmed or killed by his creditor, Nguyen Van Hung because he was unable to pay the loan.

6.  He had borrowed 1.8 billion Vietnam currency from the loan-shark to buy a goods vehicle to run his business. However, his vehicle was seriously damaged in an accident and had to be written off. He was unable to pay the debt. The loan-shark and his people came to his home for repayment. He asked for time. However, the loan-shark’s people came again and injured him with knife. He was taken to hospital for treatment. He received stitches on his belly. He moved to other places in Vietnam and was safe for a period of time. However, he saw the loan-shark’s people again. He thought they were looking for him. He therefore left Vietnam for Hong Kong.

The Director’s Decision

7.  The Director considered his 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”).

8.  By Notice of Decision dated 24 January 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm if he returned was low [13]; that state protection was available to him [18] and internal relocation was an option open to him [19].

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. Pursuant to section 12 of Schedule 1A of the Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, the Board decided to deal with the appeal on paper without a hearing. See the reasons in paragraphs 16-21.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and it accepted the Director’s findings [48]. The Board also held that relocation was an option open to the applicant [46].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 dated 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he repeated his reasons for leaving Vietnam. He did not say what errors the Board had committed in coming to its decision.

DISCUSSION

14.  His application is late for less than one month. He said that he did not receive the Board’s letter as he changed his address. I shall first consider the merits of his case before deciding whether time should be extended for him to continue with his application. See Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28, The Court of Appeal held that the applicant cannot proceed with the application for leave for judicial review without extension of time for them to file their application out of time.

15.  The applicant appeared before me and he confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board.

16.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant extension of time for him to take out this application to apply for leave for judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

19.  It is further directed that:

1.     If the applicant intends 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, he 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 applicantmust 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.

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