Case Document

100%Judiciary

HCAL 1853/2018

[2020] HKCFI 940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1853 of 2018

BETWEEN

	Bui Quy Tan	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 oral submission by the Applicant in open court;

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

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 9 February 2018 be refused; and

(2) Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 9 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Board and replaced it by the Director of Immigration (“the Director”) as interested party.

The applicant

3.The applicant is a Vietnamese national. He came to Hong Kong on 10 August 2015 illegally through China. He lodged his non-refoulement claim on 3 September 2015.

4.He claimed that if refouled, he would be harmed or even killed by his creditor Nguyen Van Coong.

5.For his business of online property trading, he had borrowed 1.2 billion from Coong for his business in 2013. Coony was well connected with the police locally. He was able to pay the interest until 2015 when the trading business went down and he was unable to pay the interest. Coong sent four people to him to demand payment of interest. He asked for time, which was extended for him to pay. He was unable to pay. Those people came and took him to a vacant house where they detained him and hit him on his back with a hammer wrapped up with rags. He was injured and vomited blood. They released him, warning him that if he failed to pay, he would be killed. He moved to work in another place and live in his friend’s house. His friend advised him to leave Vietnam for Hong Kong as Coong and his men would be able to locate him. He took the advice and came to Hong Kong.

The Director’s Decision

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

a.     risk of torture under Part VIIC 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 8 February 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be harmed or killed by Coong if he returned to Vietnam [11]; that state protection was available to him [15] and internal relocation was an option open to him [18]. His claim under BOR2 risk was not established.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He failed to attend the scheduled hearing on 10 November 2017 [25]. The Board gave him notice that his appeal would be considered in his absence if he failed to submit written explanation for his failure to attend the hearing together with any documentary evidence supporting the explanation. This is in compliance of sub-clauses 15(1) and 15(2) of Schedule 1A of the Ordinance. The applicant did not submit any written explanation for his absence. The Board then proceeded to consider his appeal in his absence.

9.By the Board’s Decision, the Board, for the reasons given in §§27-32, rejected the applicant’s evidence on the facts he relied upon to support his claim and confirmed the Director’s Decision.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 6 September 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he simply repeated the facts he had told the immigration officer.

DISCUSSION

12.The applicant appeared before me. He confirmed that he was treated fairly by the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him. The interpreter of the Board had explained the Board’s Decision to him. He had no comments on the Board’s Decision.

13.The applicant’s application is late: date of the Board’s Decision being 9 February 2018 and the date of filing Form 86 being 6 September 2018, a delay of nearly four months. The Court has to consider whether time should be extended to him to proceed with this application by considering the merits of his intended application. Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28and AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

14.The applicant explained that he had lost the court’s letter and he was not aware of the law on the time to appeal. I do not accept this explanation. This is obviously a very important matter for him. He was at liberty to make enquiry with the Duty Lawyer Scheme or the Registry of the High Court.

15.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

17.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

19.It is further directed that:

a.     If the applicantintendsto appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicantmust at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.     Liberty to apply.

Dated the 27^th day of May 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 27/5/2020 Bui Quy Tan Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27/5/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6289/17/2/288/V1004 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3200/16 (RBCZ/13245/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)