Vu Van Hung v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1262/2018

[2021] HKCFI 637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1262 OF 2018

BETWEEN

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 31 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application is more than three months after the date of the Board’s Decision and is therefore late. I shall deal with this issue below.

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 is a Vietnamese national. On 15 September 2015, he was arrested by police for illegally remaining in Hong Kong. He was convicted of some immigration offences and was sentenced to imprisonment. On 20 March 2016, he lodged his non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by his creditor Hoang and his underlings because he had borrowed a loan from him and was unable to repay the debt. Hoang had threatened to kill him if he could not pay. Details of the incidents can be seen from paragraph 7 of the Director’s Decision described below.

The Director’s Decision

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 13 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of harm from Hoang was assessed to be low [11]; that state protection was available to him [17] and that internal relocation was an option open to him [22]

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board on 29 March 2018.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision. Below is a summary of its findings.

(1)  Even if the Board accepted the applicant’s facts, there was no real risk of serious harm/death to him on his refoulement. [23]

(2)  Internal relocation was an option open to him. [24]

(3)  Reasonable state protection was available to the applicant. [25]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 4 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he said that if he was refouled to Vietnam, his life would be in danger as the creditor and his underlings would not spare him because he was unable to repay the debt.

DISCUSSION

12.As mentioned in paragraph 1 above, this application is late. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

“39. … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

15.His ground in support of this application is inconsistent with the findings of the Director or the Board. It does not assist his application.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

18.I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 12^th 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