Nguyen Van Phuc v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1229/2018

[2021] HKCFI 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1229 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be granted.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of two Decisions respectively dated 6 April 2018 (“the Board’s First Decision”) and 30 November 2018 (“the Board’s Further Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office. By these two Decisions., the Board refused the applicant’s application for filing his Notice of Appeal with the Board out of time.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Vietnamese national. He came to Hong Kong illegally on 20 December 2013. He surrendered to the Immigration Department on 11 February 2014. He lodged his non-refoulement claim on 13 March 2014.

5.He claimed that if refouled, he would be harmed or killed by his creditors as he failed to repay the loan he had borrowed. Since his application for leave to file the application for judicial review of the Board’s two Decisions on the issue of whether the Board was right to refuse to extend the time for filing the Notices of Appeal, I shall not set out the details of the facts of the case here.

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 19 May 2016 (“the Director’s First Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director considered that there were no substantial grounds for believing that he would be in danger of being harmed or killed by the black society members upon return to Vietnam. That is to say, the Director did not accept his evidence on the facts of his case. By a Notice of Further Decision dated 3 March 2017 (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk ground.

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s First Decision by filing a Notice of Appeal on 8 September 2016. He was out of time because he failed to file the Notice of Appeal within 14 days of receipt of the Director’s First Decision pursuant to section 37ZR of the Immigration Ordinance (the “Ordinance”), the deadline being 4 June 2016 as according to the Board.

9.The Board has discretion to extend time for him to file the Notice of Appeal under section 37ZT(3) of the Ordinance. The Board had considered the applicant’s explanation for late filing. He gave the reason that he could not ask anybody to write a letter on his behalf, or to show him the way to the Board’s office. The Board refused to accept his explanation, saying that he had been in Hong Kong for quite a long period of time and that he had surrendered to the Immigration Department himself. There is no reason for him not to know the Board’s address.

10.The Board further considered that there were no exceptional reasons for allowing the application for late filing of the Notice of Appeal. It therefore refused the applicant’s application for late filing of the Notice of Appeal.

11.It should be noted that although the Board said that it did not have sufficient documents or information to determine the strength of the applicant’s case, it should have received the Director’s First Decision at the time when it made its First Decision.

12.The applicant also filed his Notice of Appeal against the Director’s Further Decision out of time accordingly to the Board. See paragraph 2 of the Board’s Further Decision.

13.The applicant gave the same reason as for his first application and the Board rejected his explanation. The Board considered that there were no exceptional circumstances and it said that it did not have sufficient documents or information to determine the strength of his case. It refused to extend time for the applicant to file his Notice of Appeal. Again, it should be noted that the Board should have received the Director’s Further Decision when it made its Further Decision.

Application for leave to apply for judicial review

14.The applicant filed Form 86 on 29 June 2018 for leave to apply for judicial review of the Board’s Decisions.

15.In his affirmation in support of his application, he said that he could not go back to Vietnam as he was unable to repay the debt to the loan shark.

DISCUSSION

16.In Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, the Court of Appeal held:

“17.  Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

20.  … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.

18.  As the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum[1]… …, where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.”     

17.It is quite obvious that the Board had not considered the Director’s First Decision and the Director’s Further Decision on the merits of the applicant’s case before it made its decisions refusing to extend time for the applicant to file his Notices of Appeal. If it had done so, it would have been able to specify what other documents or information it may require to determine the strength of the applicant’s case.

CONCLUSION

18.I grant leave for the applicant to apply for judicial review in accordance with Order 53, rule 5 of the Rule of the High Court.

Dated the 1^st day of March 2021

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

[1] The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, 3 March 2016