Bui Thi Nhan v. Torture Claims Appeal Board
Read the full judgment text of HCAL 406/2019 on BabelCite. This High Court CFI judgment was delivered on 28 April 2022.
1. The Applicant is a 36-year-old national of Vietnam who entered Hong Kong illegally on 17 December 2013 and surrendered to the Immigration Department on 7 February 2014 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her husband’s creditor over his outstanding debts. She was subsequently released on recognizance pending the determination of her claim.
Cites 3 cases
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HCAL 406/2019 [2022] HKCFI 1234 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 406 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review granted. Observations for the Applicant: 1.The Applicant is a 36-year-old national of Vietnam who entered Hong Kong illegally on 17 December 2013 and surrendered to the Immigration Department on 7 February 2014 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her husband’s creditor over his outstanding debts. She was subsequently released on recognizance pending the determination of her claim. 2.The Applicant was born and raised in a village in Huyen Thuy Nguyen, Hai Phong City, Vietnam. After leaving school she married her husband and raised a family with 2 children in his neighboring village where he worked as a fisherman with his own fishing boat, while she worked in the factory before running a shop selling clothes and shoes. 3.In 2012 her husband stopped working as a fisherman after losing his boat in a storm, and the whole family relied on the limited income from the Applicant’s shop and on loans borrowed by her husband from a friend from the same village. 4.However, due to poor business the Applicant had to close down her shop in late 2013, and when her husband’s creditor came demanding for repayment of the loan, and after being beaten by the creditor and his men on several occasions, her husband left their home and disappeared without a trace, and when his creditor and the creditor’s followers turned their threats and assaults against her, the Applicant departed Vietnam on 16 December 2013 for China, and from there she sneaked into Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 June 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 5 August 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 her husband’s creditor and his followers upon her 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 them to seriously harm or kill the Applicant other than putting pressure on her to repay her husband’s debts, that in any event it was a private monetary dispute between the Applicant and her husband’s creditor 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 her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her husband’s creditor to locate her. 7.On 6 December 2016 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 22 December 2016 also rejected the Applicant’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right of life under BOR 2 being violated upon her return to Vietnam. 8.On 16 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against both decisions of the Director, but as her Notice of Appeal was deemed to have been filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to consider, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s Notice of Appeal, for which the Applicant gave the following reasons in section 5 of the Notice of Appeal:
9.It would also be relevant to note that in section 2 of her Notice of Appeal, the Applicant also set out her claim as stated to the Director of her fear of harm from her husband’s creditor over his outstanding debts as her grounds of appeal which is essentially a rehearing of her non-refoulement claim by the Board. 10.By a written notice dated 11 January 2019, the Board refused to allow the late filing of the Notice of Appeal upon finding that the Applicant had been late by 7 months and 2 months with her appeals respectively against the Director’s decisions, that such delays were serious and not insignificant and for which she had failed to give sufficient reasons, and that there were no special circumstances to justify the allowing of her late filing of the Notice of Appeal. 11.On 13 February 2019 the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just repeated her claim of fear of being harmed or killed by her husband’s creditor over his outstanding debts without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. 12.Nevertheless, given the serious consequences and implications of the Board’s decision which in effect was to deny the Applicant of her right to the second-tier of the screening process of her 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 refusing the late filing of her Notice of Appeal be scrutinized by the Court for any error of law or irrationality or procedural unfairness in the process or in its decision. 13.In its decision the Board gave the following reasons for refusing to allow the late filing of the Applicant’s Notice of Appeal:
14.While the Board was certainly entitled to find the Applicant’s delay with her intended appeals against either decisions of the Director as substantial or significant, but if it was unclear, as it so stated, as to what exactly caused such delay while the Applicant was then clearly being detained at the Lo Wu Correctional Institution for the offence of possessing a fake identity card, and given her inability to read or write English and had had to rely on assistances from others, it seems to me that the Board could have and should have obtained the missing information from the Immigration Department before deciding on whether the Applicant had given sufficient reasons for her delay. 15.More importantly, it seems reasonably arguable that in the exercise of its discretion whether to allow the late filing of the Applicant’s Notice of Appeal, the Board had 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, of which 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, has held to be necessary, as Lisa Wong J explained in her judgment of the Court in the latter case as follows:
16.For the same reasons I am of the view that it is reasonably arguable that the Board in the present case also failed to take account of the merits of the Applicant’s appeal in its refusal of the late filing of her Notice of Appeal, thus meeting the threshold for leave to be granted to apply for judicial review of the Board’s decision. 17.In the premises, I grant leave for the Applicant to do so on the ground stated above, and accordingly direct that she shall within 14 days of this decision file the originating summons, 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 28th day of April 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
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