TRAN VIET PHUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1860/2020

[2025] HKCFI 6230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1860 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 11 June 2019”. 

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 1 September 2020 and filed on 17 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 11 June 2019 without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 11 June 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 December 2017 (“the Director’s Decision”). It is clear that the date of the decision that the applicant put in Form 86 is the date of the Board’s Decision, and hence the Leave Application should be in respect of the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001860_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’ application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the Director’ Decision, which rejected his non-refoulement claim.

Amendments

4.  The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86 and spelt the Board’s name wrong.

5.  In fact, only the Board should be the putative respondent and the Director should be the putative interested party.

6.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

7.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 11 June 2019”.

Late application

8.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

9.  However, the applicant filed his Form 86 on 17 September 2020, which was more than 15 months after the Board’s Decision (made on 11 June 2019). The applicant was hence late for more than 12 months in making the Leave Application.

10.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

11.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

12.  A delay of more than 12 months is very substantial. More importantly, there is no merits in the Leave Application as discussed below.

13.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

14.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

15.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

16.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he feared being seriously harmed or even killed by his creditor named Sang due to his inability to repay a debt of 1.5 billion Vietnamese Dong.

Disposal on paper

17.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.

Grounds for judicial review

18.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

19.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 17 September 2020. He merely stated in the affirmation that he did not agree with the Board’s Decision because he could not return to Vietnam and his life would be in danger.

Discussion

20.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

21.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.

22.  In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 26 February 2019. The applicant was thus given the chance to present his case to the Board in person. However, the applicant was absent at the hearing despite that the notice of hearing was sent to all his three addresses provided by him to the Immigration Department. The Board noted that the applicant had not attended to sign his recognizance after 4 April 2018. The Board was also minded that the applicant was assisted by the Duty Lawyer Service at every stage of the first-tier screening of his non-refoulement claim and he was fully aware of his responsibility to provide all the information upon which he relied to support his claim. Hence, the Board was satisfied that the applicant’s appeal/petition could be determined without a hearing.

23.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found that the nature and extent of the inconsistencies and contradictions in the applicant’s evidence relating to the timing of the relevant events, which formed the basis of his non-refoulement claim, seriously undermined the general credibility of the applicant. The Board was not persuaded that the applicant was giving a truthful account of his past experiences in Vietnam, and it was unable to attach any weight to the applicant’s assertions of fact relating to the past treatment which he claimed to have experienced at the hands of Sang and/or Sang’s gangsters.

24.  The Board was therefore not persuaded that (1) the applicant had borrowed money from Sang; (2) the applicant was assaulted or threatened by Sang and/or Sang’s gangsters; (3) the applicant had made any complaint to the police about the alleged attacks by Sang and/or Sang’s gangsters. The Board found that the applicant had fabricated the core of his case in the hope of advancing his claim for non-refoulement protection.

25.  As to the applicant’s risks on the applicable grounds under the USM, the Board found that even if the applicant had established that he did borrow money from Sang, his fear of Sang arose solely from his inability to repay the debt. There was no involvement of the state in his alleged ill-treatment. The Board concluded that the applicant had failed to establish, even to the low standard required, that he would face a real risk of being subjected to ill-treatment, torture, arbitrary deprivation of life or persecution.

26.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.

27.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

28.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

29.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

30.  The applicant’s alleged danger had been duly assessed but rejected by the Board.

31.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

32.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

33.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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