TRAN VAN HOANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 987/2023

[2023] HKCFI 2490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 987 of 2023

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.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 November 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). His application is late. I shall deal with this issue below.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, his application is dealt with on the papers.

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 is a national of Vietnam.  He entered Hong Kong illegally on 3 March 2021.  On 19 May 2021, he was arrested by the police.  On 12 July 2021, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the creditor. 

5.  In short, the applicant borrowed a loan from the creditor for his furniture company business.  In December 2018, the business failed.  Since March 2019, the creditor had been chasing him for repayments.  Initially, they only threatened the applicant.  Subsequently, on two occasions, the creditor and his men assaulted the applicant.  The applicant’s reports to the police were of no avail.  As a result, he fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 March 2022 by the Director (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.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[13]; (ii) state protection would be available to him [14]-[17]; and (iii) internal relocation was also a viable option [18]-[20]. 

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 4 August 2022, the Board conducted an oral hearing for his appeal. 

9.  Having considered the evidence, the Board found that the applicant’s account not credible [20].  In particular, the Board found that his immigration history was unfavorable to the assessment of his credibility [21]-[23].  It also noted that the applicant’s evidence about his business was changing [26]-[28]; that his evidence about the loan and the assaults was vague, general and unsubstantiated [29]-[32]; that his claim that the creditor was powerful and influential contradicted with his own evidence and the country of origin information [33]-[37].  In these circumstances, the Board found that the applicant’s claim lacked credibility [38]-[41]. 

10.  In assessing the individual grounds, the Board found that there was no evidence to establish his claim under any of the grounds.  In any event, state protection and internal relocation were both available to the applicant.

11.  For the above reasons, the Board rejected his claim and dismissed his appeal.

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

12.  The applicant has filed Form 86 dated 21 June 2023 for leave to apply for judicial review of the Board’s Decision.

13.  In the applicant’s affirmation in support of his application, the applicant said that he disagreed with the Board’s Decision, so he wanted to file a judicial review against the Board. He said his life will be in danger if he returns to his country.

DISCUSSION

14.  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. The deadline of his application is on 18 February 2023. The delay is more than 4 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

17.  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.”

18.  The Board, for the reasons given, had rejected his evidence and found that there was no evidence to show that the applicant will be subject to the risks as claimed if he returns to his country. There is no valid ground from the applicant to challenge the Board’s Decision.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his 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