Case Document

100%Judiciary

HCAL 1149/2018

[2021] HKCFI 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1149 OF 2018

BETWEEN

	Luu, Thi Tuyet Lan	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 to apply for judicial review be refused;

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”) refusing to allow late filing of notice of appeal/ petition against the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1985, is a national of Vietnam. She arrived in Hong Kong unlawfully. On 5 January 2016 she surrendered herself to the Immigration Department claiming to have sneaked into Hong Kong illegally on 28 December 2015. 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 [8] of the decision of the Director. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her creditor as she was unable to repay a loan of 500 million VND she borrowed in August 2012 to start her car spare parts business. The moneylender was a loan shark with triad background. In August 2014 when she could not repay the principal, the creditor Ms Vu agreed to extend the repayment time to August 2015. In around May 2015, her creditor came with a man to her parent’s house to demand for repayment. They verbally threatened that if she could not repay the loan by August 2015, they would come again and take away the assets in the house and to kill her and her family members. In around August 2015, 3 men claiming to be hired by Vu came to her parents’ house with weapons. They broke the chairs and table and beat her up with bare hands for around 15 minutes. She sustained bruises all over her body without open wound. They also verbally threatened to chop her and agreed to extend the time for repayment till the end of 2015. She dared not report the matter to the police. In fear of further harm, she fled to China via Mong Cai by boat, and subsequently sneaked into Hong Kong.

The Director’s decision

4.By a notice of decision dated 14 October 2016, 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 including the low intensity and frequency of the alleged past ill-treatment, the Director considered that there are no substantial grounds for believing that there will be any real and substantial risk that the applicant would be harmed or killed by her creditor. He also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm. The decision covered torture risk^{^[1]}, BOR 2 risk^{^[2]}, BOR 3 risk^{^[3]}, and persecution risk^{^[4]}. The Notice of Decision was delivered to the applicant care of the Duty Lawyer Office. The applicant lodged an appeal/ petition to the Board against the Director’s decision. The Notice of appeal/petition dated 14 November 2016 was received by the Board on the same day.

The Board’s decision

5.By a decision dated6 December 2017, the Board without a hearing refused to allow late filing of the notice of appeal/ petition (which was received by the board on 14 November 2016) against the decision of the Director (dated 14 October 2016) as it found that the deadline for filing of the Notice of appeal/ petition fell on 30 October 2016 (taking into account 2 days for service) and the filing of the notice of appeal was therefore late by 15 days.

6.In Section 5 of the Notice of appeal/ petition, the applicant gave the reason for the delay as follows: “The day when I was about to file my case document, I was not well. Today, I am fine now, so I can proceed to lodge my case documents.”

7.The Board noted the legal principles stated in the UK case of The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122. It reasoned that the Duty Lawyer would have been under a duty to explain the procedure of lodging an appeal against the decision of the Director. While the applicant explained that she was sick, there was no medical evidence to support this claim and the Board further noted that the applicant’s explanation appeared to cover only one day of sickness. In other words, there was no explanation for the extent of the delay, covering the entire period granted to lodge the notice of appeal, or the further time taken by the applicant. In the absence of a medical certificate saying that she was sick or explanation why her sickness covered the entire period allowed to lodge an appeal, the Board was not satisfied that any special circumstances pursuant to s 37ZT(4) of the Immigration Ordinance had been shown. The late filing of the notice of appeal was therefore disallowed.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 20 June 2018 for leave to apply for judicial review of the decision of the Board refusing the late filing of notice of appeal/ petition.

9.No request for oral hearing has been made. 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 her affirmation in support of her application, she stated “From the day receiving this decision, I didn’t know that I should apply for JR until May 2018. I met someone told me how to process my JR...” She also repeated her claim that she is afraid her creditor will kill her since she is unable to repay the debt.

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.

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 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.

13.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.

14.In this case, even just counting from the 3-month time limit which ended on 6 March 2018, the application was late by more than 3 months. The delay was substantial. The applicant appeared to explain in her affirmation that she did not know her right to apply for judicial review until May 2018. Ignorance of the law generally cannot be a valid reason for non-compliance with court rules. In any event, I do not accept it as a credible explanation. She was represented by the Duty Lawyer Service in her initial application to the Director. Moreover, her alleged reason for delay was not particularized with details and unsupported by any evidence. I do not accept her explanation. The delay is inexcusable. Her application for leave for judicial review would have been refused on this ground alone.

Merits of the intended application

15.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.

16.Section 37ZT of the Immigration Ordinance relevantly provides for the followings in relation to late filing of appeal/ petition:

(1) the applicant to provide information in support of the application for leave to file late, which must include:

(a) a statement of the reasons for failing to file the notice within the 14-day period; and

(b) any documentary evidence relied on in support of such reasons;

(2) matters which the Board may take into account in considering whether to allow late filing are confined to:

(a) reasons stated for the late filing, and supporting documentary evidence filed; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) if the Board is satisfied that by reason of special circumstances it would be unjust not to allow the late filing, the Board may allow the late filing.

17.The Notice of Appeal/Petition filed with the Board against the decision of the Director was 15 days late, giving her allowance for time for service. It was in fact given to the Duty Lawyer Service representing the applicant. I agree with the Board that the applicant would have been explained by the duty lawyer her right and the procedure as well as the time limit of her appeal to the Board. Though the applicant explained that she was sick, she did not provide any medical certificate to support her claim. Indeed, she did not state for what disease and for how long she was sick. I agree that there was no explanation how her illness affected her ability to file the notice of appeal in time. The delay in the filing of her notice of appeal was not a short one. The delay was inexcusable.

18.The Court of Appeal held in Re Qasim Ali [2019] HKCA 430that regardless of the procedural breaches or the lack of explanation therefor, the merits of the applicant’s case should be considered in the determination of whether there are special circumstances that would make it unjust not to allow the late filing of the Notice of Appeal.

19.Having taken into account all relevant circumstances including the low intensity and frequency of the alleged past ill-treatment, the Director considered that there are no substantial grounds for believing that there will be any real and substantial risk that the applicant would be harmed or killed by her creditor. He also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm.

20.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.

21.The applicant stated no grounds of the judicial review in Form 86. She mentioned nothing in the form or in the affirmation to suggest how the Board or the Director erred. Nor was there a challenge with regard to procedural regularity and fairness.

22.I find that, even if one gives the applicant’s claimed account of events the most favourable interpretation, 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. The fear of the applicant, if any, are not real or well founded. It also did not reach the minimum level of severity to justify international protection.

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

24.I agree with the risk assessment of the Director. I also cannot find any special circumstances in the applicant’s case to suggest that it would be unjust not to allow the late filing of the notice of appeal to the Board.

25.Having considered the decisions of 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 their decisions. Nor do I see any failure to apply high standards of fairness in the decisions.

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

Disposition

27.I refuse to extend the time to apply, and dismiss the application, for leave for judicial review.

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 Luu, Thi Tuyet Lan 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 5187/16/11/126/V594 Director of Immigration Putative Interested Party’s ref. no.: QA T/C1574/16 (Formerly RBCZ 10896/16) 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 3 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration