Ta Quang Vinh v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 976/2018

[2020] HKCFI 2589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 976 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.      The 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 1993, is a national of Vietnam.  On 26 May 2014, he surrendered himself to the Immigration Department claiming that he had unlawfully entered Hong Kong on 21 May 2014.  He then 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 [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 his ex-employer because he could not afford to pay the agreed compensation (500 million VND) for financial loss as a result of a fire to her prawn shop.  His ex-employer told him to gather more money for her to renovate the shop, or she would hire people to kill him and send people to threaten his family.  Calls were also made to threaten him and his family a few times before he left Vietnam.

The Director’s decision

4.By notices of decision dated 25 July 2016 and 26 May 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4]. Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low and found state protection as well as internal relocation as a reasonable option available to the applicant.  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 25 August 2017.

6.By a decision dated 28 February 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claimat para [23-42] of its decision.  It found there is no merit in his application.  The essential reasons for the decision are that: the applicant and his family members had never been inflicted with any injury, there was no evidence to show that his ex-employer, Phuong, had any intention to cause any harm on him; Phuong was not politically affiliated nor was she connected with triads or police or government officials [23].  The Board further found that state protection and internal relocation are reasonable and available to him [28,42].

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 30 May 2018 for leave to apply for judicial review of the decision of the Board (though he wrongly name the date of the Board’s decision).

9.By a letter dated 30 June 2020 sent to his reported address, the court invited the applicant to submit any submissions that he 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.

10.In the Form 86, the applicant did not set out any grounds for the relief sought.  In the affirmation in support, he only repeated that his ex-employer is still looking for him and his life would be in danger in Vietnam.

Discussion

11.The relevant principles regarding 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, country of origin information, 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 the appeal to the Board, the Director’s decisions were superseded by the Board’s decision and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, 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 will 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: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

14.The 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.

15.In this case, the 3-month time limit expired on 28 May 2018 and the application wasonly late by 2 days.  I accept that the delay was insignificant.  I will therefore only focus on the merits of the intended application.

Merits of the intended application

16.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 accepted the asserted primary facts which are favourable to the applicant.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

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

19.The grounds/ complaints raised by the applicant in his Form 86 and affirmation contained nothing to demonstrate why the Board was unfair or unreasonable in the public law sense.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis in his bare assertion to challenge the findings of the Board.

20.Indeed, on his own account, the alleged acts of his ex-employer are far below the level of severity required by law to justify non-refoulement protection.  The acts could not justify a real risk of harm.  There was no valid reason why his ex-employer would still wish to pursue him and cause him serious harm for her loss caused in an accidental fire after so many years.

21.A real risk of relevant ill-treatment or harm can hardly be established.

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

Disposition

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

Dated 22 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