Le Thi Loan v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 928/2018

[2020] HKCFI 2389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 928 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 C P Pang:

1.  Extension of time for the application for leave to apply for Judicial Review be refused; and

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1977, is a national of Vietnam.  On 27 October 2014, she surrendered to the Immigration Department claiming that she sneaked into Hong Kong from the Mainland on 16 February 2014. She lodged a non-refoulement claim and was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [22-46] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her creditor.  She claimed that she failed to repay the debt of 0.5 billion Vietnamese Dong she borrowed from a loan shark in mid-2010 to extend her fruit and seafood business.  At the end of 2010, the fish farm suffered a severe loss and she was unable to repay the debt.  Since then the creditor kept on threatening and assaulting her on many occasions. Even after she came to Hong Kong and was repatriated to Vietnam in January 2013, the creditor continued to threaten and assault her.  Therefore, she again sneaked into Hong Kong via Mainland in February 2014 to avoid her creditor.

4.Immigration record revealed that the applicant first arrived Hong Kong on the strength of her Vietnamese passport and overstayed in 2003.  She was convicted for the offence of overstaying and repatriated to her country in October 2003.  In 2005, she was arrested and convicted for offences including using forged ID card receiving a total sentence of 15 months’ imprisonment.  She was repatriated to her country after the sentence was served.  In November 2011, she was arrested and convicted for offences including thefts and breach of deportation order receiving a total sentence of 22 months.  She was repatriated upon the sentence having been served in January 2013.  On 27 October 2014, she surrendered to the Immigration Department.

The Director’s decision

5.By a notice of decision dated 25 January 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

6.The Board decided not to hold an oral hearing. It gave detailed explanation for such ruling [16-21].

7.By a decision dated 3 January 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

8.The Board gave reasons for rejecting the applicant’s claimat para [23-46] of its decision.  In a nutshell, the Board found that the case arose from a private money dispute [25].  The creditor only punched her and used tree branches to hit her head for which she did not need to seek medical treatment.  Her injuries were not serious.  She did not have valid reasons for her claimed risk [24].  The applicant’s experience in the alleged incidents did not attain a minimum level of severity [36].  Furthermore, state protection is available to her [31] and local relocation is a viable option [46].

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 25 May 2018 for leave to apply for judicial review of the decision of the Board.

10.In the Form 86, the applicant did not set out any grounds for the relief sought.  In her affirmation in support, she said she disagreed with the decision of the Board. She repeated what she had told the Director and the Board about her inability to repay the loan and that she would be killed by her creditor.  The creditor also threatened her mother and her children.  She did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12.When the applicant pursued her appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

Application out of time

13.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A 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.  In considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.  Briefly, the following are principles relevant to the present case: (a) an application made outside the three-month period will entail undue delay; (b) as such, an extension of time is required, and to justify an extension of time, the applicant must show good reason for extending the period; among the various factors likely to be significant are the merits of the substantive application; (c) indeed, even if there exists good reason for undue delay, the grant of leave to commence judicial review will also depend on the arguability test (among other factors); the arguability test requires the applicant to demonstrate to the court that his case is one that enjoys realistic prospects of success: Re Mohamed Cassim Jawfar CAMP 16/2020, [2020] HKCA 633 para 15.

15.In this case, the 3-month time limit expired on 3 April 2018 and the application was late by about one month.  The delay was not insignificant, for which the applicant did not provide any explanation.  I do not see any satisfactory or valid reason for the delay.

Merits of the intended application

16.As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

17.In the present case, the Board in fact accepted the primary facts asserted by the applicant.  It had taken a view on facts most favourable to her.  It only disagreed with her on the evaluation of risk of harm flowing from the events and assessment of availability of state protection as well as internal relocation.

18.As mentioned above assessment of risk of harm, availability of state protection and internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

19.The complaint raised by the applicant in her affirmation did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  It was only a regurgitation of what she told the Director and the Board.  There is no reasonably arguable basis to challenge the Board’s findings.

20.The Board adopted a fair manner in assessing the evidence of the applicant and took a view on facts most favourable to her.  The Board did not challenge her credibility. 

21.It is worthy of mention that, even on her own case, the creditor started to threaten and assault her since 2010.  She subsequently entered Hong Kong in October 2011 and stayed until she finished her sentence in January 2013.  She did not lodge her claim for protection during her stay.  She entered Hong Kong again in February 2014, yet she did not lodge her claim until October 2014.

22.The applicant’s conduct in Hong Kong by her delay in lodging the claim for protection could have damaged her credibility and was inconsistent with someone in genuine fear for his life and safety.

23.And on her own account, the alleged past ill-treatment was of low intensity.  It came nowhere near the level of severity required by law to constitute torture or CIDTP.

24.The Board did not hold an oral hearing.  It was a determination after considering the principles set out in ST v Betty Kwan [2014] 4 HKLRD 277.  The Board had reminded itself of the relevant authority and principles on oral hearings and considered that it was not necessary to have one in the present case.  The Board gave detailed explanation for such decision [16-21].  It correctly applied the principles and considered all relevant factors for its decision.

25.There was no challenge with regard to procedural regularity and fairness.  Bearing in mind that the applicant personally attended the screening interview with the immigration officerand the Board accepted the version of facts as advanced by the applicant, I do not find the course adopted by the Board to be irregular or unfair.

26.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

27.For the reasons given, there is no prospect of success in the applicant’s intended application.  In the absence of any good reason for the delay, I refuse to extend time and refuse to grant leave for judicial review.

Dated 28 September 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