Bui Van Hung v. Torture Claims Appeal Board

HCAL 1281/2019

[2022] HKCFI 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1281 of 2019

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

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 18 July 2014 and was arrested by police on 7 August 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Quang Ninh, Vietnam. After leaving school he worked in various jobs, got married and raised a family with one child in his home village.

3.In 2001 he decided to operate a restaurant in his home village by borrowing a loan from a fellow villager with triad connection, and after it was closed down, he borrowed another loan from the same villager for a fish farming business in 2002, but after it was wiped out by a storm in 2004, he was unable to repay his debts, and after being assaulted by the men sent by his creditor on two occasions, he then fled to Hai Phong City in 2005 where he stayed for several years without incidents.

4.However, one day in 2008 he saw his creditor and his men in the neighbourhood, and although he was not spotted by them, he had to move from town to town to avoid being located by his creditor, and in 2014 he decided that it was not safe to remain in Vietnam, and so he departed for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

5.By a Notice of Decision dated 9 January 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

6.In his decision the Director took into account of 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 his creditor to seriously harm or kill him other than to put pressure on him to repay his debts, that in any event it was a private monetary matter between them 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”) show 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 part of Vietnam away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

7.On 7 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but his Notice of Appeal was clearly filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of his Notice of Appeal, and by a written decision dated 7 May 2019 it refused to allow the late filing of the Applicant’s Notice of Appeal.

8.In its decision the Board found the filing of the Applicant’s Notice of Appeal almost 16 months late, that such a delay was unreasonable and unacceptable, that his claim of ignorance of the law or of the English language were not relevant or convincing or persuasive, and that there was no basis to exercise any discretion to extend the time limit for his serious delay.    

9.On 14 May 2019 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 repeated his claim of fear of harm from his creditor over his debts as before without putting forth any ground for his intended challenge, nor was he able to do so at the hearing of his application.

10.Nevertheless, given the serious consequences and implications of the Board’s decision which in effect denied the Applicant the right to the second part of the two-tier screening process of his non-refoulement claim under the Unified Screening Mechanism (“USM”) in place since March 2014, high standards of fairness require that the Board’s reasons for its decision to refuse the late filing of the Applicant’s Notice of Appeal be scrutinized by the Court for any error of law or irrationality or procedural unfairness.

11.Before doing so, it would be necessary to remind myself of the relevant provisions of the Ordinance then applicable prior to its latest amendments for the late filing of the notice of appeal to the Board, where Section 37ZT(2) then stipulated as follows:

“(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of –

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.”

12.In the present case, the Board was in my view perfectly entitled to find the Applicant’s delay of almost 16 months to file his Notice of Appeal unreasonable and unacceptable, and that for which the Applicant had failed to provide any good or valid explanation, but it appears that the Board in refusing his late filing did not take account of the merits of his appeal as part of the relevant matters of fact within its knowledge under subsection(2)(b) of the Ordinance, and as so held to be necessary regardless of the procedural breaches or the lack of explanation therefor by the Court of Appeal in Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, where Lisa Wong J in giving the judgment of the Court in the latter case stated as follows:

“23. … even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”    

13.Similarly in the present case, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable.  I am of course mindful of the fact that, as noted above, subsequently on 1 August 2021 significant legislative amendments were made to the relevant Section 37ZT of the Ordinance to the extent that the Board shall from then on only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons (see the amended subsection (2)), and also with important amendments to subsection (3) as well, which may henceforth lead to an argument under the doctrine of futility for applications made prior to the amendments but with leave for judicial review granted thereafter.

14.Given the findings of the Court of Appeal as noted above, and the serious implications of applications of this nature, I am of the view that high standards of fairness would require that leave be granted for judicial review of this decision of the Board so that if indeed such issue does arise at the hearing of the application, it can be appropriately argued and dealt with there and then.     

15.In the premises, and for the reasons given, I grant leave to the Applicant to apply for judicial review of the Board’s decision dated 7 May 2019 on the ground that the Board in refusing to allow the late filing of his Notice of Appeal that it failed to take account of the merits of the appeal as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance.

16.Accordingly, I direct that the Applicant shall within 14 days of this decision file an originating summons on the ground stated above, and to serve a copy thereof together with all the relevant documents on the Board as respondent and on the Director as interested party.

Dated the 19^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