Pham Tien Dung v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1503/2021

[2022] HKCFI 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1503 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 refused.

Observations for the Applicant:

THE APPLICATION

1.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) and the interested party is the Director of Immigration (the “Director”).

2.This is the applicant’s application for leave to apply for judicial review of the Decisions dated 20 June 2019 of the Board (“the Board’s Decision”).  His application filed on 29 October 2021 is late.  I shall deal with this issue below.

3.The applicant does not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of RHC, I shall consider his application on the papers.

The applicant 

4.The applicant is a national of Vietnam.  He entered Hong Kong illegally on 29 April 2015 and surrendered to the Immigration Department on 5 May 2015.  On the same date, he lodged a non-refoulement claim.

5.The applicant claimed that, if refouled, he would be harmed or killed by his creditor Dung.  According to the applicant, he borrowed money from Dung for gambling.  Yet he lost all the money and was unable to repay Dung.  Since then, he had been chased four times by Dung and her followers for repayment and was attacked once.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 6 to 15 of the Board’s Decision.

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 20 April 2017, the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no substantial evidence for believing that he would be subjected to the risks he alleged if he returned to Vietnam [10]-[11]; that state protection would be available to him [12]-[14] and that internal relocation was an option open to him [15]-[20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  He was absent from the scheduled oral hearing on 6 December 2018 before the Board.  Nor did he submit written explanation to the Board about his absence.  Thus, the Board determined his appeal in his absence [70]-[75].  It is pertinent to note that the Board, when determining the applicant’s case on paper in his absence, reminded itself that the failure of the applicant to give oral evidence to clarify the inconsistences in his case was neutral as to his credibility.  Nevertheless, without such explanations and clarifications, the Board might come to a view that the applicant failed to discharge his burden of proof [76]-[79].

9.Bearing these in mind, the Board considered all the available evidence.  It found that the applicant’s claim was exaggerated, fabricated and contained discrepancies and inconsistences.  For example, the applicant’s claim that he could borrow the sum from the money lender was inconsistent with his earning and repaying capacity as documented in the country of origin information [91]-[96].  He was also never admitted to hospital for the ill-treatments or received any medical treatments from doctors or nurses.  His alleged injuries failed to attain the minimum level of severity [97].  Further, there was no state involvement as the applicant could apply for passport without difficulty [98].  Besides, it was the applicant’s own evidence that the money lender did not ask for repayment for more than a year [102].  Thus, even adopting the most generous interpretation, the Board still found the applicant a untruthful witness [103]-[107]. 

10.In any event, the applicant’s dispute with the money lender was private in nature without any state involvement and internal relocation was available to the applicant [108]-[113]; [138]-[149]; [157]. Thus, the Board rejected the applicant’s claim on all applicable grounds and dismissed his appeal.     

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 29 October 2021 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmations in support of his application, he said that he did not agree with the Board’s Decision.  It is dangerous for him to return to Vietnam.

DISCUSSION

13.As mentioned in paragraph 2, 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 delay of more than 2 years is, of course, serious.  However, I shall first consider the merits of the applicant’s case.

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

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

“13 (1).… …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.”

16.There is no valid ground to challenge the Board’s Decision.

17.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.

18.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 5^th day of January 2022

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