Tran Thi Huong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1790/2018

[2020] HKCFI 1278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1790 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 10 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested a hearing. A hearing was fixed at 10:00 a.m. on 11 December 2019. However, without any explanation or prior notice, the applicant did not turn up at the hearing. The Court of Appeal in Re Abdus Salam [2019] HKCA 1091 at §22 held that the court should deal with the merits of the case on paper, which I shall now do.

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, amended 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 illegally and was arrested by police on 13 August 2014. She was charged with the immigration and theft offences and was sentenced to imprisonment. She lodged her non-refoulement claim on 23 September 2014.

5.She claimed that if refouled, she would be harmed by her creditors for failing to settle her debts. She had two sons, both were being imprisoned in Vietnam. Her husband had deserted her. She had borrowed two loans amounting to 700 million Vietnamese Dongs. She was unable to repay the loans. Her creditors sent people to look for her. They also told her to repay the loans or they would do something against her. She was under immense mental stress and she decided to leave Vietnam for Hong Kong.

The Director’s Decision

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 28 November 2016 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of her being harmed by the creditors [13]; state protection was available to her [17]; internal relocation was an option open to her [19] and the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. However, her filing of the Notice of Appeal was late; the deadline being 14 December 2016 and her Notice of Appeal was filed on 22 May 2017, more than five months’ late.

9.The applicant’s explanation for being late was that she feared that she might be harmed if she returned to Vietnam and that she was being detained. The Board was not satisfied with her explanations

10.The Board applied section 37ZT of the Ordinance to her case. The Board further considered the case of the United Kingdom, The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122. The Court of Appeal in this case considered three stages for the application:

a.     seriousness or significance of the delay;

b.     any good explanation for the delay; and

c.     all the circumstances of the case, applying the two factors in CPR rule 3.9, i.e. (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.

11.Having considered the above factors, the Board was not satisfied that there were special circumstances pursuant to section 37ZT(3) of the Ordinance to extend time for the applicant to file her Notice of appeal and it refused to extend time for the applicant to file her Notice of Appeal.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 31 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision. She simply repeated her fear that she might be harmed or killed by her creditors if she returned to Vietnam.

DISCUSSION

14.The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 held at §§43-45:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, Ex parte Doody [1994] 1 AC 531 at 560 D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45.     It is for the Secretary to make such a determination.  The courts should not usurp that official’s responsibility.  But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.  R v Home Secretary, Ex parte Bugdaycay [1987] 1 AC 514 at 531 E-G.  If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

15.There are three observations in this case.

16.First, the applicant explained that she was being detained. The Board has not given the reasons why it did not accept her explanation. If she was being detained, obviously she would be unable to file her Notice of Appeal with the Board. There is no information when she was discharged from custody. The period of delay would have to be calculated from the date of her discharge.

17.Second, CPR rule 3.9 of the UK practice does not apply in Hong Kong. CPR and Civil Justice Reform (“CJR”) in Hong Kong are not identical, at least the objectives, one being overriding and the other underlying. More importantly, Order 1A, rule 2(2) provides:

“In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

18.It seems that the Board had not made a distinction of the CPR and the CJR before it decided to apply CPR, rule 3.9 to this case.

19.Third, the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“8. If the application for appeal to the Board is late, the applicant has to apply for late filing of the notice, with reasons in support of the application. …

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.”

20.There is no evidence to show that the Board had considered all the circumstances and the merits of the applicant’s case.

21.I find that it is at least arguable that the applicant may succeed in her application for judicial review of the Board’s Decision.

CONCLUSION

22.I therefore grant leave to the applicant to apply for judicial review. The applicant should take out the application in accordance with Order 53 rule 5 of the Rules 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