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

HCAL 2655/2018

[2021] HKCFI 1215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2655 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 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 26 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). This application made on 23 November 2018 is 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 applicant is a Vietnamese national. He came to Hong Kong illegally by swimming from Shenzhen on 3 September 2015. He was arrested by police on 4 September 2015. He lodged his non-refoulement claim with the Immigration Department on 7 September 2015.

5.He claimed that if refouled, he would be harmed or killed by his creditor and his subordinates as he was unable to repay his loan. He borrowed 4 billion Vietnamese Dong from the creditor. He had written a letter, mortgaging his house as security. He was able to pay the interest for the first few months. Later, his business turned bad and he was unable to repay. The creditor came to his house with his subordinates demanding repayment. They assaulted him because he was unable to pay. One of the people had thrown a glass bottle at his face. His face was injured and bled. He had received medical treatment and stitches. The creditor had threatened him that if he was unable to repay the loan, he would be killed. The creditor was unable to enforce the security because he did not have the applicant’s identity document. Because of the death threat, he had to leave Vietnam. Details of the incidents are set out in 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 12 December 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if he returned to Vietnam [15]; that state protection was available to him [19] and internal relocation was an option open to him [25].

The Board’s Decision

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

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out in paragraph 55 of the Board’s Decision:

“… … I have found above that the Appellant’s claims in relation to this matter are not truthful and I am not satisfied that he genuinely fears he will be subjected to harm on this basis. Accordingly, having considered all of the evidence I am not satisfied that there are substantial grounds for believing that the Appellant would be in danger of torture as defined in section 37U(1) of the Ordinance if he is removed or surrendered to the Risk State, ie. Vietnam.”

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 23 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he repeated the facts as he claimed above and said that it is unfair for the adjudicator to say that he can go back to Vietnam.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The Court will first consider the merits of the intended appeal.

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

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 grounds in support of this application do not assist his application as the Board had rejected his evidence on the facts of his case.

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 6^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