IQBAL MAZHAR ALIAS MAZHAR IQBAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1418/2020

[2021] HKCFI 1506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 1418 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

The Applicants’ application for leave to apply for judicial review be dismissed.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 35-year-old national of Vietnam who entered Hong Kong illegally on 6 November 2014 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his loan, and when his two daughters, the 2^nd and 3^rd Applicant (“A2” and “A3”) now aged 14 and 11, also entered Hong Kong illegally on 14 August 2015 and surrendered to the Immigration Department on 17 August 2015, A1 also raised a non-refoulement claim for each of them on the same basis and to be assessed jointly together. They were subsequently released on recognizance pending the joint determination of their claims.

2.  A1 was born and raised in Hai Phong, Vietnam. After leaving school he worked as a telephones repairman, married his former wife and raised a family of his 2 daughters, A2 and A3, in his home district.

3.  In April 2013 A1 decided to run a shrimps business by borrowing a loan from a local bank and a further loan from a money-lender, but in November 2013 his stocks were wiped out by an epidemic, and as a result his business was closed down and he was unable to repay his loans, and when the money-lender started to send men to threaten him and his family, A1 departed Vietnam on 5 November 2014 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, and later in August 2015 he arranged for his 2 daughters to also sneak into Hong Kong and raised the same claim, for which A1 completed a Non-refoulement Claim Form (“NCF”) jointly for the 3 of them on 6 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 23 May 2016 the Director of Immigration (“Director”) rejected the Applicants’ claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm from A1’s creditor upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from the creditor, that it was a private personal monetary dispute between A1 and his creditor without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with A2 and A3 to other part of Vietnam away from their home district where it would be difficult if not impossible for them to be located.

6.  On 7 December 2016 the Applicants each filed an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as their notices of appeal were filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, the Board therefore proceeded under Section 37ZT(2) of the Ordinance to decide as a preliminary decision without a hearing whether to allow the late filing of their notices of appeal.

7.  By a written decision dated 8 February 2018, the Board refused to allow the late filing of the Applicants’ notices of appeal upon finding that they were late by 6 months, that they did not produce any evidence to corroborate their bare assertions that they lost their files containing all the documents, and that there were no other matters by the factual basis of their claims which might amount to special circumstances that would make it unjust not to allow the late filing of their notices of appeal.   

8.  Meanwhile earlier on 11 November 2016 the Director invited the Applicants to submit additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from them, the Director by a Notice of Further Decision dated 22 December 2016 rejected their BOR 2 claim upon finding that they had failed to establish a personal and real risk of their absolute and non-derogable rights under the HKBOR being violated including right to life under BOR 2 upon their return to Vietnam.

9.  The Applicants did not lodge any appeal to the Board against that further decision of the Director, but on 8 July 2020 they jointly filed a Form 86 for leave to apply for judicial review of the Board’s decision which they dated 7 December 2016, but as noted above the only decision made by the Board in respect of their case is the one dated 8 February 2018, while in their supporting affirmation of the same date A1 merely repeated their claim of risk of harm from his creditor over his loan but without putting forward any proper ground for their intended challenge.

10.  By then the Applicants were also seriously out of time with their application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

11.  As the last day of the three-month period for them to file their Form 86 to challenge the Board’s decision fell on 8 May 2018, the applicants were therefore more than 2 years late with their application, but before the court is to consider whether to extend time for their late application, A1 on 12 May 2021 wrote to request to withdraw his application, and when he was asked to clarify the position of A2 and A3, A1 subsequently replied on 22 June 2021 that his request to withdraw the judicial review application is for both himself and A2 and A3 as well.

12.  As it is plain that the claims of A2 and A3 are premised fundamentally on A1’s claim, and as both of them still a minor with A1 as their legal guardian and next friend in their application, the withdrawal of the application must inevitably apply to all three Applicants.     

13.  In the premises, I accede to A1’s request and accordingly dismiss the application of all 3 Applicants.

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