Pham Quang Tuat v. Torture Claims Appeal Board

HCAL 1285/2018

[2021] HKCFI 1297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1285 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 February 2018 granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of Vietnam who entered Hong Kong illegally on 4 April 2015 and surrendered to the Immigration Department on 8 April 2015 and raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Quang Ninh Province, Vietnam where he ran a sea produce business in 2013, and to expend his business, he in early 2014 borrowed a loan from a local money-lender repayable within one year with interests.

3.However, his business did not fare well, and by February 2015 he was unable to repay his loan, and for which he was threatened by men sent by his creditor that he would be killed if he still failed to do so, and as he became fearful for his life, he on 30 March 2015 departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 November 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 22 July 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

5.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and his men upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him for repayment of his loan, that it was a private monetary dispute without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of Vietnam away from his home district in large cities where it would be difficult if not impossible for his creditor to locate him.

6.By a Notice of Further Decision dated 8 August 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

7.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 3 August 2016, but for which he failed to attend an oral hearing scheduled on 20 December 2017 before the Board without any explanation, and the Board proceeded to deal with his appeal in his absence, and on 2 February 2018 it dismissed his appeal on all applicable grounds as it was unable to determine the credibility of his claim or whether he would face any real risk of harm due to his failure to attend the hearing.

8.On 5 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

9.By then the Applicant was however also out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

10.As the last day of the three-month period for him to file his Form 86 fell on 2 May 2018, the Applicant was therefore more than 2 months late with his application, and in considering whether to extend time, the court shall 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: see AW v Director of Immigration [2016] 2 HKC 393.

11.In the Applicant’s case, a delay of more than 2 months must be considered as significant, for which he did not provide any explanation in his affirmation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his delay.

12.As for the merits of his intended application, as noted above the Applicant has not put forward any proper grounds or complaints in his Form or supporting affirmation. Nevertheless, in view of the seriousness of the issue at hand and the implication of the dismissal of the appeal, the court will adopt an enhanced standard in scrutinizing the Board’s decision and in particularly as to its reasons for the dismissal.

13.First it would be helpful to set out the Board’s purpose for scheduling an oral hearing for the Applicant’s appeal as stated in paragraph 2 of its decision:

“I considered whether, pursuant to Section 12 of Schedule 1A to the Immigration Ordinance (Cap. 115) (“the Ordinance”) and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“Petition Guide”), I could determine the Appellant’s appeal/petition without a hearing but came to the conclusion that by reason of the nature of the issues, including the credibility of the Appellant, I should hold a hearing.”

14.As noted above, the Board then scheduled the hearing for 20 December 2017, but notwithstanding the fact that the notice of the hearing had been sent to his last reported address without being returned through undelivered post, the Applicant did not appear at the hearing, nor could he be contacted by phone, and when he subsequently also failed to respond to the Board’s request to provide his explanation for his non-attendance, the Board proceeded to dismiss his appeal in his absence.

15.The Board’s reasons were stated in paragraph 11 of the decision as follows:

“In view of the Appellant’s failure to attend the Hearing, I am unable to determine the credibility of his allegations. In the absence of oral evidence from the Appellant, I am unable to determine whether there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear if he returns to the Home Country. In the absence of oral evidence from the Appellant, the country of origin information in respect of the Home Country does not by itself demonstrate that the Appellant personally will face a risk of harm warranting non-refoulement protection.”

16.While the Board was clearly entitled in the circumstances to proceed to deal with the Applicant’s appeal in his absence without scheduling another oral hearing, it decided the appeal against the Applicant because it was unable to determine his credibility due to his failure to attend the oral hearing, and that without his oral evidence it was unable to determine whether there was any real risk or substantial grounds for believing that he will suffer harm form his creditor upon his return to Vietnam, notwithstanding the fact that the Board also had the materials and information of the Applicant’s claim as contained in the hearing bundle for his appeal which the Board did refer to at [9] – [10] of the decision but did not appear to have conducted any analysis or assessment of his claim based on the applicable grounds, nor did it provide any elaboration or explanation as to which and why the available COI did not demonstrate that the Applicant would face a risk of harm warranting non-refoulment protection.

17.In Re Hidayah [2018] HKCA 595, CACV 160/2018, 14 September 2018, where the Board for similar reasons dismissed the applicant’s appeal, Chu JA in giving judgment for the Court of Appeal stated:

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

16. We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.”       

18.In the premises, and for the reasons given, I am of the view that it is reasonably arguable that the Board in the present case had also failed to give or to give sufficient reasons for dismissing the Applicant’s appeal regarding his non-refoulement claim, thus having met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

19.Accordingly, I extend time to the Applicant’s late application, and grant leave for him to apply for judicial review of the Board’s decision on the basis stated above, and in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, direct that he shall file and issue an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.   

Dated the 7^th day of May 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