Case Document

100%Judiciary

HCAL 765/2018

[2020] HKCFI 2470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 765 OF 2018

BETWEEN

	Dong Van Quyen	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 the documents only; or
	consideration of the documents and oral submission by the applicant in open court;

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 Reviewbe 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 1992, is a national of Vietnam. On 28 December 2015, he surrendered to the Immigration Department and lodged a non-refoulement claim. He 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 [18-25] 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 his creditor. He said that he failed to repay the debt of 150 million Vietnamese Dong he borrowed from a loan shark in mid- 2014. He borrowed the money to set up his fish farm business. He failed to repay the interest and loan since June 2015. He had been on 3 occasions threatened by his creditor that he would be killed if he could not repay the debt. In September, he moved to Hanoi and later moved to Mong Cai in November 2015 to avoid the creditor. On 17 December 2015, he left Vietnam for Mainland China and sneaked into Hong Kong on 23 December 2015.

The Director’s decision

4.By a notice of decision dated 21 April 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

5.The applicant attended a hearing before the Board on 7 August 2017.

6.By a decision dated 11 September 2017, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claim at para [30-44] of its decision. In a nutshell, the Board found the applicant’s creditor is more concerned with the repayment of the loan rather than to harm or kill him. All the creditor did was to threaten him and they never physically attacked him. If they had the intention to carry out their threat, they would have done so long before he was able to leave his home city. Moreover, it was a money dispute and he did not report the matter to the police [30,33]. The applicant failed to establish that there are substantial grounds for believing that he would be subjected to torture or ill-treatment, if he is refouled [35-36].

8.Further and in any event, internal relocation is a viable option to him [44].

9.Having considered the totality of the evidence before it, the Board concluded that the applicant’s claim failed on all applicable grounds [45].

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 3 May 2018 for leave to apply for judicial review of the decision of the Board (though he wrongly stated the date of the Board’s decision).

11.In the Form 86, the applicant did not set out his grounds for relief sought. In his affirmation in support, he only stated that he cannot return to Vietnam as he will be killed by “black society”.

12.By a letter dated 8 July 2020 posted to the last updated address of the applicant with the Immigration Department, the court invited the applicant to submit information including any submissions that he would like to make. Since then, the applicant has not made any response or submission to the court. No request for oral hearing has been made. The application is therefore considered on the papers.

Discussion

13.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.

14.When the applicant pursued his 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 the latter’s decision.

Application out of time

15.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.

16.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.

17.In this case, the 3-month time limit expired on 11 December 2017 and the application was late by about 5 months. The delay was substantial and the applicant did not provide any explanation for the delay. I do not see any satisfactory or valid reason for the delay.

Merits of the intended application

18.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.

19.In the present case, the Board did not take issue with the applicant’s claimed primary events. It rejected the applicant’s appeal/ petition based on its assessment of risk he would face, if refouled. Further and in any event, the Board found that internal relocation is a viable and reasonable option for him.

20.As mentioned above assessment of evidence, risk of harm, availability of 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.

21.The application form and affirmation of the applicant did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a request for rehearing of his case. There is no reasonably arguable basis to challenge the findings of the Board.

22.Even on the applicant’s own account, the past ill treatment was of low intensity and frequency. It did not reach the level of severity required to constitute torture or CIDTP. He did not report the matter to the local police or authorities. He resided in Hanoi and Mong Cai uneventfully for 2 months before he left Vietnam. There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled. The decision of the Board is eminently reasonable.

23.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

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

Dated 8 October 2020

	(Chung Lai Fan, Christine)
	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 8 October 2020 Dong Van Quyen 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 8 October 2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7038/17/5/44/V1291 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 481/17 (Formerly RBCZ 10406/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

Cites 3 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration