TRAN THI HONG NHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following;

1.   Extension of time to apply for leave for Judicial Review be refused; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.   This is the Applicant’s application by Form 86 filed on 27 June 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 14 January 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 May 2021 (the “Notice”) refusing her application for non-refoulement protection.

2.   The Applicant is a Vietnamese national.  She surrendered to the Immigration Department on 7 September 2020 claiming to have sneaked into Hong Kong on 2 July 2020.  She filed a claim for non-refoulement protection.  Her claim was rejected by the Director.  Her appeal against the Director’s decision was dismissed by the Board.  She now applies for leave to apply for judicial review of the Board’s Decision.  Her personal background, the factual background leading to the present application, the basis of her previous claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below [1] for reference.   In gist, she claims she will be harmed or killed by a moneylender for being unable to repay her debt owing to the moneylender. 

3.  The Applicant testified before the Board.  The Board found she had only suffered minor physical injuries as a result of the assault by the moneylender’s associates which fell short of the requisite severity.  There was no evidence that the Applicant had been subjected to ill-treatment within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance. The Applicant had never reported the threats to the police or other government authorities in Vietnam or sought protection from the state.  There was no evidence that these authorities even knew of her plight, let alone acquiesced in her ill-treatment.  There was no evidence that any public official or persons able to wield the authority of the government and/or the state had any connection with this claim and that the ill-treatment had any relevance to the interest and/or benefit of the Vietnamese government.  There was no evidence that the Applicant had a well-founded fear of persecution for one or more of the reasons enumerated in the 1951 Convention relating to the status of refugees and its 1967 Protocol (the “Convention reasons”). There was no evidence that the Vietnamese government or state was unwilling or unable to afford protection to the Applicant or to help her for a Convention reason or for any other reason.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found even on the basis of the factual case as asserted by the Applicant, she had failed to establish her entitlement to protection under any of the applicable grounds under the Unified Screening Mechanism.  Hence, it dismissed her appeal against the Director’s Notice.

The law and explanation for the late application

4.  The leave application was filed five months and thirteen days after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application had not been lodged promptly, being made more than three months after the date of the Decision sought to be reviewed.  Extension of time to file the leave application is required.

5.  In AW and Director of Immigration and William Lam[2], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[3], per Litton PJ.  

6.  Despite clear warning in the Form 86 that an applicant is required to state her grounds for application and reasons for delay, if any, the Applicant provided neither.  At the hearing, after the relevant legal provisions as mentioned in the above paragraphs had been explained to her, the Applicant said she had never received the Decision.  She said she came to Court because she received the notice of hearing.  That could not explain why she filed the Form 86 in the first place.  After much prompting, she eventually admitted that she received the Decision two to three months before she file the Form 86.  Her answer does not suggest there was any irregularities in the delivery of the Decision which could explain the two and half months delay in making the application.  There was no evidence of any such irregularities such as late delivery, mis-delivery or non-delivery.  This Court does not accept that she received the Decision two or three months before filing her Form 86.  Her answer, approximate as it may as regards time, nevertheless confirms that she had sat on the Decision for at least two to three months before taking steps to make the present application. 

7.  When asked why it took her two to three months to make up her mind to file the Form 86, she gave various excuses, including that she was getting married at the time; that she was in a bad mood after learning that her appeal was dismissed; that she did not know the procedure until she met someone in the Park who became her friend and advised her; and that she had language problems.  All these excuses, cumulatively and taken at their highest, could not explain why, if she was concerned about her safety upon being refouled, she did not promptly take steps to enquire about the procedures on how to take the matter forward.  She had no answer to the Court’s question why she did not make enquiries with the Immigration Department as it was the Immigration Department to which she surrendered.  She could not explain why she did not make enquiries with the Board as it was the Board’s Decision which dismissed her appeal.  She had no valid explanation for the rather long delay.  Though the delay was about two and half months after the three months’ period, the leave application was only lodged after almost five and half months of receipt of the Decision.  It was not promptly made.  The delay falls within the ‘many months’ category for which leave may be refused “however strong the complaint might otherwise be”.  The delay in this case so substantial that leave may be refused for reason of the delay alone without considering merits of the substantive application. However, out of abundance of caution, the Court also considered merits.

Merits of the intended leave application

8.  The ground of application advanced by the Applicant in her supporting affirmation filed with the Form 86 is basically a repetition of the case she presented before the Board, ie that she had borrowed from a moneylender to treat her mother’s disease and was threatened with death for being unable to repay.  She reiterated her fear of that she will be killed, if refouled back to Vietnam. 

9.  In substance, her grounds of application is a direct challenge against the finding of fact by the Board, which is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision.  The Applicant has not advanced any of those grounds.  Nor could this Court find any such vitiating elements in the Decision in its anxious scrutiny of the Board’s Decision.  In the circumstances, this Court finds there is no merit in the intended leave application.  In the light of that finding, it is not necessary to consider whether the Applicant would suffer any prejudice if leave is refused as there is no merit in the application.  All the legal issues raised by this leave application are all well-settled.  There are no questions of general public importance involved in the intended judicial review which would likely have to be resolved by the courts in any event.  Hence, this Court finds there is no good reason for extending the period to apply.

Conclusion

10.  For the above reasons, extension of time to apply for leave to apply for judicial review and the leave application are refused.

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