DONG VAN CHUNG 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.  The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the only putative respondent;

2.  Extension of time to file Form 86 be granted; and

3.  Leave to apply for judicial review be granted.

Observations for the Applicant:

1.  By a Form 86 filed on 30 August 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 14 May 2021; the Director of Immigration (“DI”) was also named as a putative respondent.  The DI made a first tier decision on the Applicant’s non-refoulement claim on 18 January 2021.  On my own motion, paragraph 1 of the above orders is made to properly name the parties to these proceedings. 

2.  The Applicant does not require an oral hearing for this leave application; I dispose of this application by consideration of documents only.

3.  The Applicant is a Vietnamese national.  His non-refoulement claim was based on an alleged risk of being harmed or killed by his moneylender with triad background.  Without giving an oral hearing to the Applicant, the Board assessed the Applicant’s alleged risk to be not real and not substantial.  In coming to such assessment, the Board found the State of Vietnam showing signs of improvement in combating crimes and corruption and enhancing its protection of citizens, the Applicant having a reasonable internal relocation alternative, and the claim not falling within the meaning of torture under the Immigration Ordinance or a Convention ground in relation to persecution risk. The Applicant’s appeal/petition against the DI’s tier-1 decision was hereby dismissed.

4.  The Applicant set out a ground of judicial review in his supporting affirmation that the Board did not allow the Applicant “an opportunity to clarify [his] case and situation in [his] country”. 

5.  The Board indeed gave no oral hearing to the Applicant to clarify his case.  In ST v Betty Kwan [2014] 4 HKLRD 277, the Court of Appeal held that there is no absolute right to an oral hearing before the Board; it is ultimately a question of fairness in the circumstances of each case.  As Cheung CJHC (as then Chief Justice then was) explained in paragraph 26 of the judgment:

“…there is no absolute right to an oral hearing. Amongst other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issue involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.”

6.  The Board, in deciding whether or not to call for an oral hearing in this case, did remind itself of the principles in ST v Betty Kwan.  It said, at paragraph 3 of the Board’s decision, that it was satisfied that a fair decision could be reached without an oral hearing.

7.  However, the Board did not expressly state how the principles in of ST v Betty Kwan were actually applied to the facts of the case.  With reference to ST v Betty Kwan and other authorities concerning this subject matter, examples of considerations as to whether an oral hearing should be conducted include:

(a)  whether there was anything missing from an appellant/petitioner’s case which might be brought out in an oral hearing;

(b)  whether there were any points of fact or law which might be better brought out in an oral hearing;

(c)  whether there were any authorities, for or against the appellant/petitioner, that should be addressed;

(d)  whether there was any need for further questions, especially where an adverse inference might be drawn from the facts, in which case the appellant/petitioner should have the chance to address the point;

(e)  whether there were any general advantages in holding an oral hearing, even though this might occasion extra trouble and expenses; and

(f)  whether, in the interest of overall fairness, the appellant/petitioner might have anything useful to contribute by way of being heard.

8.  In the first-tier decision, the DI mentioned (at paragraphs 13 and 19) that the Applicant had not much knowledge about the moneylender and his network in Vietnam.  It was a reason leading to the DI’s finding that the Applicant had a reasonable internal relocation alternative.  Further, the DI referred to information that the Vietnamese Police could have provided protection to the Applicant, but the Applicant and his family had never sought help from them (at paragraphs 20-21). 

9.  Dissatisfied with the DI’s first-tier decision, the Applicant lodged a Notice of Appeal/Petition to the Board, in which he stated, amongst others:

(a)   bribery and corruption was prevalent in Vietnam;

(b)   the evidence considered by the DI was only from international commentaries and not real; and

(c)   according to his knowledge, the sphere of power and influence of his creditors was very large, spanning across the whole nation of Vietnam, but the DI failed to give sufficient weight to this consideration.

10.  The Board came to findings which were similar to the DI’s, and remarked that there was no evidence showing Vietnam’s State authorities would be unwilling or incapable of providing protection.  Emphasis was again put on the Applicant’s assertion in the tier-1 process that he did not seek assistance from the Police (paragraphs 30-31 of the Board’s decision).  Apparently, the Board had taken into account additional country information which was not listed in the DI’s first-tier decision.

11.  If the Board had given the Applicant an oral hearing to make representation, apparently the Applicant could have, and would have, provided oral evidence to supplement his Notice of Appeal/Petition and explain why he said the DI’s country information should not be relied on, why he did not seek Police assistance and why he would still be subject to risks even if Police assistance was sought or he relocated to another Vietnamese city. 

12.  That the Applicant’s explanations might not be accepted at the end of the day after an oral hearing is one thing, whether he was given a chance to do so is another.  Given the specific challenges in the Notice of Appeal/Petition, it seems to me reasonably arguable that, had the ST v Betty Kwan principles been vigorously applied, the Board would have come to a different case management decision that an oral hearing should have been provided.

13.  I note that, based on the limited materials available to the Court, the Applicant might not have presented a very strong non-refoulement claim showing a real and substantial risk of ill-treatment.  However, I am unable to say, even if an oral hearing had been given to the Applicant, the outcome of his appeal/petition to the Board would have inevitably been the same.

14.  The Applicant’s filing of the Form 86 was after a 3-month period from the date of the Board’s decision.  The Applicant needs an extension of time granted by this Court to further pursue these proceedings.  The relevant principles governing extension of time are not repeated here.  The delay in this case, slightly over 2 weeks, was not substantial.  There is no, and will not be any, prejudice to the putative respondent if the application is allowed to go on.  I am not prepared to refuse extension of time simply because of the delay and the lack of an explanation for the delay in the papers.  By reason of the public law ground concerning the lack of an opportunity to clarify his case, which has been specifically set out in the supporting affirmation of this application, I find the substantive merits of this leave application reasonably arguable.  In exercise of my discretion, I grant extension of time for the Applicant to pursue these proceedings.

15.  Leave to apply for judicial review is granted.  The Applicant shall pay heed to the “Notes for the Applicant” below and follow the necessary procedure in order to pursue the application for judicial review.

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