NGUYEN THI KHANH HOA v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1592/2021

[2021] HKCFI 3891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1592 of 2021

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;

Order by Deputy High Court Judge K.W. Lung:

Extension of time for the application for Judicial Review be refused &

the application 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 3 January 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  Her application filed on 22 November 2021 is late for over 3 years and 10 months.  I shall deal with this issue 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”), the Court will deal with her application on paper.  She is now being detained in the custody of the Immigration Department.

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

The applicant

4.  The applicant is a Vietnamese national.  She entered Hong Kong illegally and surrendered to the Immigration Department on 21 September 2015 and lodged non-refoulement claim.  She claimed that, if refouled, she would be harmed or killed by Nguyen Van Thin, the creditor, from whom she had borrowed 600 million Vietnamese Dong and she had defaulted in the loan repayment.

5.  She borrowed the money for garment business.  She bought garments in bulk and resold them to the hawkers.  The hawkers did not pay her.  Therefore, she was unable to repay her debt to the creditor.  The creditor together with his subordinates had gone to her home on 3 occasions to demand repayment.  Except for the second time where they agreed to extend time to her for repayment, for the 1^st and the 3^rd occasions, they assaulted her with iron rods.  She reported the matter to police, who said that it was only a private matter between herself and her creditor.  They did not make further investigation.  She had to leave her elder daughter to her paternal grandmother and her younger daughter to her mother for caring.  She fled Vietnam for Hong Kong.  Details of her story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

6.  The Director considered her application in relation to the following risks:

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

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 12 July 2016, the Director refused her claim on Torture risk, BOR 3 risk and Persecution risk for the reason that it was not substantiated.  The Director found that the level of risk of her being harmed or killed by the creditor or the fundamentalist groups in her locality was assessed to be low [12]; that the matter was a personal matter and the state was not involved [14]; that state protection would be available to her [18] and that internal relocation was an option open to her [22]. 

8.  By Notice of Further Decision dated 14 February 2017, the Director rejected his claim on BOR 2 risk because he was unable to establish, by evidence, that she was subjected to violation of her right to life upon her return to Vietnam [6].

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decisions.  A hearing was fixed for her on 30 March 2017.  But she was absent.  The Board then gave due notice to her under section 15 of Schedule 1A of the Ordinance.  She did not reply to the notice.  The Board then proceeded to consider her appeal on paper.

10.  The Board, having considered the evidence, rejected her appeal and affirmed the Director’s Decisions.  The Board found that the applicant’s fact was unable to satisfy the requirements for Torture risk, BOR 2 risk, BOR 3 risk or Persecution risk.  Her appeal was therefore dismissed.  [76-79]

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

11.  The applicant filed Form 86 dated 22 November 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant did not set out any specific ground for her application.

DISCUSSION

13.  As mentioned in paragraph 1 above, 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.  Her delay is significant and serious.  I shall first consider the prospect of the intended judicial review.

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

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, CA.  §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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 Board had considered the merits of the applicant’s case and given reasons in support of its conclusion in accordance with Re Hidayah [2018] HKCA 595 §15.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

20.  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