Case Document

100%Judiciary

HCAL 1126/2018

[2021] HKCFI 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1126 OF 2018

BETWEEN

	Nguyen Bui Tuyen	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 submissions by the applicant in open court.

Order by Deputy High Court Judge C P Pang:

1. Extension of time 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 1988, is a national of Vietnam. On 3 March 2015, he was arrested by the police and referred to the Immigration Department for investigation. He then lodged a non-refoulement claim. He was subsequently released on recognizance. On 14 October 2015, he was arrested for offences of using false instrument and taking up unlawful employment and subsequently sentenced to 15 months’ imprisonment.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [22] 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 as he was unable to repay a debt of 300 million VND that he borrowed in 2010 to start his electronic equipment shop. In July 2012, he ceased his business and was unable to repay the loan. Since August 2012, he was threatened by telephone calls that he would be killed if he could not repay the debt. In October 2012, his creditor came to his home with 2 followers to vandalise his home and beat him up. As a result, his whole body was swollen. In fear of his creditor, he left his home town and lived in other districts from October 2012 until February 2015 when he received debt collecting calls again.

The Director’s decision

4.By a notice of decision dated 27 January 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low. He found that state protection is available to the applicant and internal relocation is a viable option for him. 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 4 January 2018, the Board without holding an oral hearing, rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.

6.The Board gave detailed reasons for rejecting the applicant’s claimat paragraphs [23-46] of its decision. In a nutshell, the Board found that it was only a private loan dispute and not arising from a reason for persecution risk, and the state or authorities were not involved. The applicant did not seek protection from police or authorities and hence it could not be established that he could not have protection of the state. He did not sustain any serious injuries to support the claim that he would be subjected to risk under BOR 3 or BOR 2. In any event, internal relocation is a viable option for the applicant.

7.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 19 June 2018 for leave to apply for judicial review of the decision of the Board.

9.No request for oral hearing has been made. The application is therefore considered on the papers.

10.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought. He only repeated his claim that he would be harmed or even killed by his creditor as he is unable to repay.

Discussion

11.The relevant principles regarding non-refoulement claims 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 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 will 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 decision will only focus on discussing the Board’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 by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

15.In this case, even just counting from the 3-month time limit which ended on 4 April 2018, the application was late by more than 2 months. The delay was substantial. The applicant did not request extension of time or give explanation for the delay. I cannot find any good reason for the undue delay.

Merits of the intended application

16.Nevertheless, I will also consider the merits of the intended judicial review. 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 did not take issue with the applicant’s asserted primary facts and events. 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 evidence, 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 applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. Nor was there a challenge with regard to procedural regularity and fairness.

20.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

21.Indeed, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating at the most a remote and unreal risk of future harm.

22.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of serious or proscribed harm, if refouled.

No oral hearing before the Board

23.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.

24.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 officer with legal assistanceand 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.

25.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.

26.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

27.In the absence of good reason for extending the period to make the application, I refuse extension of time to apply. Accordingly, leave to apply for judicial review is also refused.

Dated the 28^th day of January 2021

	(M. O. WONG) (Ms)
	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 28 January 2021 Nguyen Bui Tuyen 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 28 January 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6201/17/2/200/V971 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3006/16 (Formerly RBCZ 10904/15) Department of Justice, Senior Assistant Law Officer (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 4 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration