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

HCAL 2103/2018

[2022] HKCFI 160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2103 of 2018

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:

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 11 July 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  Her application filed on 3 October 2018 is late for about 15 months.  I shall deal with this issue below.

2.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her 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 national of Vietnam.  She entered Hong Kong illegally on 26 September 2015 and was arrested by the Hong Kong police for theft and illegal remaining on the same date.  She was sentenced to 4-month imprisonment for the offence of theft and the offence of illegal remaining was adjourned pending the outcome of her non-refoulement claim which was lodged on 9 October 2015. 

5.The applicant claimed that, if refouled, she would be harmed or killed by members of a triad society because she was unable to repay her brother’s loans.  According to the applicant, Hung was her younger brother, who borrowed a loan from triad members in 2010 for his own business.  However, the business closed down and he defaulted the repayment.  In 2011, the applicant and her family were harassed and chased by the triad members for the loan payment.  Hung was attacked once by those men and the applicant and her father were also beaten up with wooded sticks.  Feared of the continuous threats by the triad members, the applicant eventually fled to Hong Kong for protection.  Details of her story are set out in paragraph 6 of the Notice of Decision by the Director dated 22 June 2016 (“the Director’s First Decision) and paragraph 19 of the Board’s Decision described below. 

The Director’s Decisions

6.The Director considered her 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 22 June 2016 (the “Director’s First Decision”) and Notice of Further Decision dated 11 July 2017 (the “Director’s Second Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of her being harmed by the triad members was assessed to be low [12]-[17]; that state protection would be available to her [18]-[21] and that internal relocation was an option open to her [22]-[23].  Her claim on BOR 2 risk was also refused in the Director’s Second Decision for the reason that she failed to establish, by evidence, that her personal right to life would be violated upon her return to Vietnam.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”. 

The Board’s Decision

8.The applicant appealed the Director’s Decisions to the Board.  An oral hearing was scheduled to be held on 30 November 2017 but the applicant failed to attend.  The Board gave due notice to the applicant demanding explanation for her absence with documentary evidence.  She did not provide any explanation for her absence.  The Board then proceeded to consider her appeal on paper [20]-[21].  The Board considered that the applicant did not intend to apply for non-refoulement claim as (1) she was not inflicted with severe injuries by the triad members; (2) she was able to go to Ha Long Bay undisturbed; (3) she was arrested by the Hong Kong police for theft; and (4) her evidence on whether she and her parents were the guarantors of her brother’s loan was inconsistent.  Thus, the Board found that the risk of her being harm or killed by the triad members upon refoulement was low and, on this basis, the Board dismissed her appeal [22]-[25].  In any event, the Board examined the relevant country of origin information and concluded that state protection and internal relocation were available to the applicant [28]-[30]; [47]-[51].      

Application for leave to apply for judicial review of the Board’s Decision

9.The applicant filed Form 86 on 3 October 2018 for leave to apply for judicial review of the Board’s Decision.

10.In her affirmation in support of her application, the applicant produced as exhibit the certificate of imprisonment by the Correctional Services Department and asked for judicial review of the Board’s Decision.  But she did not specify any ground in support of her application.

DISCUSSION

11.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 delay is, of course, serious and significant.  However, I shall first consider the merits of the applicant’s case.

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

13.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).

14.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.”

15.The Board was entitled to consider her appeal in her absence and, having considered the evidence before it, came to its conclusion as it did.

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.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.I therefore refuse to extend time for the applicant to apply for leave to apply for her intended judicial review. Accordingly, I dismiss her application.

Dated the 14^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