Case Document

100%Judiciary

HCAL 1246/2018

[2021] HKCFI 717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1246 OF 2018

BETWEEN

	Nguyen Thi Hoa	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 submission 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; 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 decisions of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1972, is a national of Vietnam. On 10 July 2013, she was arrested by the police and referred to the Immigration Department for investigation. She was sentenced to 15 months’ imprisonment for offences of unlawful remaining in Hong Kong and using a forged identity card. On 15 May 2014 she lodged a non-refoulement claim. She 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 [2-3] 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 her husband because she did not help his drug trafficking activities, and after she had taken the children with her to her parents’ home she would not re-unite with him despite his request. She claimed that the debt he owed to his creditors had led to harassment from creditors, but this is now irrelevant because they had sold their house to discharge the debt. Her husband had demanded her to deal with drug trafficking to get more money but she refused and hence he had assaulted her many times. After the debt was paid off in June 2012, she took the children to live with her parents. He had not assaulted her ever since. He came to her parents’ home and asked to be reunited with her and the children. She refused and he uttered threat that he would not be lenient to her. Despite of the passage of a whole year when she had experienced no more hostility, she nevertheless left Vietnam on 13 June 2013 for China and later sneaked into Hong Kong unlawfully.

The Director’s decisions

4.By notices of decision dated 8 July 2016 and 8 September 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. He found that state protection is available to the applicant and internal relocation a viable option, which further lower or negate the perceived risk. 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 28 November 2017.

6.By a decision dated 29 December 2017, 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 claim at paragraphs [4-34] of its decision. In a nutshell, the reasons can be summarized as follows:

(1) the applicant’s case is about past domestic violence which has long disappeared and there is no longer substantial risk to her [7];

(2) there are many places in Vietnam where she can safely live without undue hardship [18];

(3) the COI shows reasonable availability of state protection [23];

(4) the Board noted that she did not lodge her claim after she arrived in Hong Kong but only lodged the claim after she was arrested for illegal working and using forged identity card [32];

(5) the Board found her dishonest and unreliable [34].

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

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 3 July 2018 for leave to apply for judicial review of the decision of the Board.

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

11.In the Form 86 and supporting affirmation, the applicant stated that the Board had ignored the issues related to her and repeated her fear of harm by her husband as she refused to help him trafficking in drugs.

Discussion

12.The relevantprinciples 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.

13.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 will nevertheless examine the decisions of the Director, it is unnecessary to delve into the decisions of the Director. This decision will only focus on discussing the Board’s decision.

Application out of time

14.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.

15.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.

16.In this case, even counting only from the 3-month time limit which ended on 29 March 2018, the application was late by more than 3 months. The delay was substantial. The applicant did not request extension of time or give explanation for the delay. The delay is inexcusable.

Merits of the intended application

17.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.

18.In the present case, the Board rejected the applicant’s claim even if it accepted the primary facts asserted by the applicant as the past domestic violence had long disappeared and there is no substantial risk or substantial basis for her fear. Moreover, state protection and internal relocation are available to her. And, “for the sake of completeness”, it analysed on credibility and found the applicant dishonest and unreliable. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

19.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.

20.The Form 86 and supporting affirmation contained nothing to demonstrate why the Board was unfair or unreasonable in the public law sense. The repetition of her feared harm cannot constitute a viable ground of review. 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.The applicant delayed in lodging the claim for protection after she came to Hong Kong. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. I agree with the Board that it could be taken into account as damaging the applicant’s credibility and adversely affected the credibility of the claim.

22.I also agree that even if one acceptsthe claimed account of events, the alleged past ill-treatment or experience were of low intensity and frequency which can hardly establish that the applicant would be at real risk of being subjected to any type of serious ill-treatment or proscribed harm, if refouled.

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 their decisions. Nor do I see any failure on their part to apply high standards of fairness.

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

Disposition

25.I refuse extension of time to apply. Accordingly, application for leave to apply for judicial review is dismissed.

Dated 25 March 2021

	(Chung Lai Fan, Christine)
	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 25 March 2021 Nguyen Thi Hoa 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 25 March 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4187/16/7/157/V260 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1405/16 (Formerly RBCZ 1946/14) and RBCZ 9000471/17 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 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.

[3] 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.

[4] 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.

Cites 3 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration