Bui Thi Thuy v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 970/2018

[2020] HKCFI 2640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 970 OF 2018

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 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 1971, is a national of Vietnam.  On 15 September 2015, she was arrested by the police for unlawfully remaining and referred to the Immigration Department.  She then 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 [9-19] 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 30,000,000 Vietnamese Dong she borrowed from a loan shark in around 2010 to establish a fish farming business with her husband.  In 2013, 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 a few occasions.  She was once unlawfully detained.  She did not report to the local police.  To avoid her creditor, she moved to Haiphong to live with a friend for a month in mid-2015 before she left Vietnam to come to Hong Kong via the Mainland.

The Director’s decision

4.By a notice of decision dated 26 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.By a decision dated 8 November 2017, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

6.The Board gave reasons for rejecting the applicant’s claim at para [56-81] of its decision.  In a nutshell, the Board found inconsistencies between her claims in documents and her evidence at the hearing, and her evidence was implausible [64-65].  It rejected her evidence as to the harm she had suffered and that her claims relating to extortion and being kidnapped etc. were manufactured or exaggerated, at least [68].  In any event, the Board found for the sake of completeness that internal relocation is a viable option for the applicant [46].

Application for leave to apply for judicial review

7.The applicant filed a Form 86 on 30 May 2018 for leave to apply for judicial review of the decision of the Board. However, she wrongly quoted the date of the Board’s decision. I will treat her intended application as against the decisions of the Director and the Board. 

8.In the Form 86, the applicant did not set out any grounds for the relief sought.  In her affirmation in support, she said the adjudicator of the Board was biased and neglected the relevant issues.  She repeated the version she told the Board and that the Board’s decision was inappropriate and unfair.

9.By a letter dated 24 June 2020 sent to her reported address, the court invited the applicant to submit any submissions that she would like to make and confirm whether an oral hearing is requested.  Since then, the applicant has not made any response or submission to the court.  The application is therefore considered on the papers.

Discussion

10.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.

11.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

12.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. 

13.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.

14.In this case, the 3-month time limit as against the Board’s decision expired on 8 February 2018 and the application was late by more than 3 months.  The delay was a significant one, for which the applicant did not provide any explanation.  I do not see any satisfactory or valid reason for the undue delay.

Merits of the intended application

15.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.

16.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts in particular the harm she experienced based on the major inconsistencies and illogicality in the applicant’s evidence.  On the factual findings, there would be no basis for the applicant’s claim on all applicable grounds.

17.Moreover, the Board found that internal relocation is a viable option for the applicant.

18.As mentioned above assessment of evidence, the risk of harm, and 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.

19.The complaint raised by the applicant in her affirmation contained no particulars to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  It was her bare assertion and 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.And even on her own account, the alleged past ill-treatment was of low intensity and frequency.  It came nowhere near the level of severity required by law to constitute torture or CIDTP and is indicative of at the most a remote and unreal risk of harm.

21.The Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  It gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.  There cannot be any criticism of the Board’s determination which is eminently reasonable.

22.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

23.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 undue delay, I refuse to extend time and refuse to grant leave for judicial review.

Dated 15 October 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