NGUYEN THU TRUC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2590/2019

[2024] HKCFI 2096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2590 of 2019

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;

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 22 September 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which is 22 December 2017. Her application was filed on 5 September 2019. It is more than 1 year and 8 months’ late. This issue will be dealt with below.

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

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

The applicant

4.  The applicant, aged 57, is a national of Vietnam. She was arrested by police on 28 January 2015 for entering Hong Kong illegally. Whilst being on bail, she committed an offence of possessing forged Hong Kong Identity Card and was convicted and sentenced to 12 months’ imprisonment. On 12 March 2015, she lodged her non-refoulement claim on the basis that, upon refouled, she would be harmed or killed by her creditor.

5.  She ran her chicken farm business in 1986. In 2014, she borrowed money from the moneylender for expansion of her business. There was a plague in November in 2014 that caused her great loss. She was unable to repay the loan. The moneylender brought some people to her home to demand repayment. She was unable to pay and they assaulted her with wooden planks. They also slapped her face and her mouth bled. Her injury was not serious. She did not report to police because they were corrupt and she had no money to bribe them. Upon advice of her friends, she left Vietnam, leaving her husband and children behind, in order to avoid the moneylender. Details of her story are set out in paragraph 6 of the Notice of Decision of the Director dated 22 April 2016 (“the Director’s Decision”).

The Director’s Decision

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the chance of getting harmed or killed if she returned to Vietnam was slim [18.(1)]; (ii) it was a personal monetary dispute where the state was not involved [18(2)]; (iii) state protection would be available to her upon her return [19] - [23]; (iv) internal relocation was viable [24] - [28]. Therefore, the applicant’s case failed to meet any of the requirement of the applicable risks.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 4 August 2017, the Board conducted an oral hearing.   

9.  Having considered the applicant’s evidence, the Board came to its conclusion that it did not accept her evidence that she had borrowed a loan from the moneylender. Even if her story were true, there was no evidence to show that the moneylender was to harm her. Her ill-treatment was not serious, but was only the usual violence or threat of moneylenders to the borrowers. The Board further considered that state protection would be available to her [24] - [26] and internal relocation was viable [41] - [42].

10.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 on 5 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her application in support of her application, the applicant did not raise any reason to challenge the Board’s Decision. Nor did she give any reason for her delay in filing Form 86.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  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.”

17.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

18.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

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