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

HCAL 838/2021

[2021] HKCFI 2774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 838 of 2021

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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 May 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). 

2.He is now being detained by the Immigration Department.  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.

4.This applicant can be dealt with quite briefly because there is a fundamental flaw on the part of the Board, which has ignored the Court of Appeal’s decision in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 in situation where the applicant filed the notice of appeal out of time and the Board has to exercise its discretion under section 37 ZT(3) of the Ordinance.

The applicant

5.The applicant is a citizen of Vietnam.  He was arrested by police on 10 July 2015.  On 31 July 2015 he lodged non-refoulement claim with the Immigration Department.  He claimed that, if refouled, he would be harmed of killed by his creditor because he was unable to repay the debt he owed to the creditor.

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 27 April 2017 (“the Director’s Decision”), the Director refused his claim for the reason that the risk of him being harmed or killed by the creditor if he returned to Vietnam was assessed to be low [10]; that state protection was available to him [12] and that internal relocation was an option open to him [18].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  The Board found that his appeal was late for 3 years and 9 months.  The Board did not accept his explanation that he could not understand English.  The applicant had submitted 2 letters to the Board.  The Board considered that they were irrelevant to his delay and rejected them as the reasons.

9.Having found that there was no justifiable reason for his delay, the Board refused to extend time for the applicant to appeal.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 7 June 2021 to apply for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that he did not agree with the Board’s Decision and that it is dangerous for him to return to Vietnam.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA.  §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14.The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“16. Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

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.”

15.Obviously, the Director’s Decision was available to the Board under section 9 of Schedule 1A of the Ordinance.  But the Board had not considered the merits of the applicant’s case by reference to the Director’s Decision.  This is a procedural irregularity, for which leave should be granted to the applicant to apply for judicial review of the Board’s Decision.

CONCLUSION

16.I therefore grant leave for the applicant to apply for his intended judicial review.   The applicant shall take out the application for judicial review in accordance with Order 53, rule 5 of the RHC within 14 days after the grant of leave.

Dated the 20^th day of September 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