Luu Thi Nam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1766/2018

[2020] HKCFI 1280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1766 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

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

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 16 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) with the Director of Immigration (the “Director”) as interested party.

2.The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant failed to attend court on 27 November 2019. I shall deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amends Form 86 Form 86 by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Vietnamese national. She came to Hong Kong on 8 October 2014 illegally. On 28 October 2014, she surrendered herself to the Immigration Department.  On the same day, she lodged a non-refoulement claim.

5.     In support of her claim, she said that if refouled, she would be ill-treated or even killed by a hooligan named Dung.

The Director’s Decisions

6.The Director considered her 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 July 2015 and Notice of Further Decision dated 10 March 2017 (the “Director’s Decisions”), the Director refused her claim for the reason that her claim was not substantiated. 

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s Decisions by separate applications, both of which were late, that is, beyond 14 days after the date of the Director’s respective Decisions.

9.By Decision dated 31 December 2015, the Board refused to extend her time for her appeal of the Director’s Decision dated 8 July 2015. By another Decision dated 16 August 2018, the Board again refused to extend her time to appeal the Director’s Further Decision dated 10 March 2017.

10.On both occasions, the Board was not satisfied with her explanations for the delay. The Board did not go further to consider the merits of her case.

11.The applicant now applies for leave to apply for judicial review of the Board’s Decision dated 16 August 2018 only. However, I consider that the Board’s Decision dated 31 December 2015 should be considered as well because her applications cannot be considered separately. That is to say, the Director’s Further Decision cannot be considered without considering the facts as set out in the Director’s Decision dated 8 July 2015.

DISCUSSION

12.In Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, the Court of Appeal held:

“17. Where a notice of appeal is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

18.     Where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

……

20.     It was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

13.The Board had not considered the merits of the applicant’s case. Thus the applicant has a reasonable prospect of success in her intended judicial review of the Board’s Decisions.

CONCLUSION

14.I grant leave to the applicant to apply for judicial review of the Board’s Decisions. The application should take out her application in accordance with Order 53, rule 5 of the Rule of the High Court.

Dated the 23^rd day of June 2020

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