LE DE AN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 993/2022

[2023] HKCFI 62

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 993 of 2022

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 23 August 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

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 13 July 2020. On 10 August 2020, he was arrested by the police. On 17 August 2020, he lodged his non-refoulement claim. The basis of his claim was that, if refouled, he would be harmed or killed by his creditor.

5.  In short, the applicant borrowed a loan from his creditor to compensate the workers of his construction project who died in an industrial incident. In the first four months, he was able to repay the interests. However, the high amount of compensation hugely affected his project which was stalled for two weeks. Only seven workers left in the end and he was unable to continue the project. Thus, since November 2019, he had been defaulting the repayments. Afterwards, the applicant encountered five incidents, in one of which he was attacked and broke a leg while the others were verbal threats. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 20 May 2021 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 as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low level of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[13]; (ii) state protection would be available to him [14]-[16]; and (iii) internal relocation was a viable alternative [17]-[19].

The Board’s Decision

8.  On 10 January 2022, the applicant filed his notice of appeal/petition. He was around 7 months’ late [3]. While the applicant explained that he was serving his sentence in the prison from 16 October 2021 to 15 January 2022, the Board considered that he still failed to explain why he did not file his notice of appeal/petition before his prison terms [3]. The Board also noted that the applicant had indicated his intention to appeal the Director’s Decision on 1 December 2021 via a letter. Yet, he was notified that the said letter did not conform to the statutory requirement and that he was, by then, late in filing the notice of appeal/petition [4]-[5].

9.  Having considered the relevant legal principles, the Board found that the applicant failed to provide any circumstances beyond his control that would prevent him from filing the notice of appeal/petition on time [13]. Meanwhile, his detention was not a viable reason for the delay, as well as his letter on 1 December 2021 did not constitute a valid notice of appeal/petition [14]-[15].

10.  As a result, the Board concluded that there were no circumstances beyond the applicant’s control that would warrant his late filing of notice of appeal/petition. Thus, the Board refused to exercise its discretion to allow the late filing.

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

11.  The applicant has filed Form 86 dated 26 September 2022 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant said he does not agree with the Board’s Decision. If he returns to Vietnam, his life will be in danger.

DISCUSSION

13.  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).

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

15.  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.”

16.  The Board had found the fact that he had failed to provide any circumstances beyond his control that would prevent him from filing the notice of appeal/petition on time.

17.  Section 37ZT of the Ordinance provides:

(1)  If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a)  must include a statement of the reasons for failing to file the notice within that period; and

(b)  must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2)  The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3)  The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a)  had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b)  failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)

18.  The applicant is clearly in breach of section 37ZT of the Ordinance and he does not have any reasonable excuse for his breach. The Board was entitled to make its decision as it had done. The applicant’s reasons in paragraph 12 are not valid reasons to challenge the Board’s Decision.

19.  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.

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

CONCLUSION

21.  I refuse to grant leave for the applicant 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