Vu Van Dat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 112/2022

[2022] HKCFI 1242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 112 of 2022

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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 April 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 4 February 2022 is late. I shall deal with this issue below.

2.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.

The applicant

4.The applicant is a national of Vietnam.  He last entered Hong Kong illegally on 13 March 2013 and was arrested by the police on the next day. Upon examination, the applicant had two prior records of entering Hong Kong illegally with subsequent deportations to Vietnam in 2011 and 2012 respectively.  On 12 December 2013 and 8 April 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Vietnamese authorities. 

5.According to the applicant, he was refused household registration by the Vietnamese authorities because he was once a refugee in Hong Kong.  Without such registration, he was unable to live with his brother-in-law and thus became homeless.  One night in August or September 2002, he and the other homeless people were chased and beaten by the police and civil defenders.  They were detained and sent to re-education camp where he was constantly assaulted for his failure to pay bribes.  The applicant claimed to be tortured twice in 2006 and 2009.  In September or October 2009, he was released from the camp. On 10 October 2010, while he was working, he was approached by a police officer and two civil defenders who threatened to send him back to the camp if he wandered on the street again.  Out of fear, he escaped to Hong Kong.  After two failed attempts to stay in Hong Kong, he was sent back to Vietnam where he encountered the police officers and civil defenders again twice in 2011 and 2013.  Eventually, the applicant fled to Hong Kong and stayed for protection. The details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 12 July 2016 (the “Director’s First Decision”) and paragraphs 20 to 35 of the Board’s Decision described below.    

The Director’s Decisions

6.The Director considered the applicant’s claim in relation to the following risks:

(1)     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)     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”);

(3)     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

(4)     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 way of the Director’s First Decision, the Director dismissed his claim on Torture risk, BOR3 risk and Persecution risk.  The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) on the applicant’s own evidence, the perceived risk of harm from the Vietnamese authorities was farfetched and not substantial and the alleged injuries failed to attain the minimum level of severity [14]-[17]; (ii) state protection would be available to the applicant [18]-[22]; and (iii) internal relocation was a viable alternative [23]-[29].

8.For reasons set out in the Notice of Further Decision dated 1 December 2016, the Director also rejected the applicant’s claim on BOR2 risk (the “Director’s Second Decision”) for the reason that there was no evidence to show that his right to life under BOR2 would be violated upon his return.

9.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

10.The applicant appealed the Director’s Decisions to the Board.  On 14 January 2020, the Board scheduled an oral hearing for his appeal.  However, the applicant was absent and did not respond to the Board’s letter requesting his explanation for the absence [42].

11.As a preliminary matter, the Board considered and accepted the applicant’s explanations for late filing of the notice of appeal/petition [43]-[49].  It considered the relevant country of origin information (“COI”) [52]-[61].  The Board accepted that as a returnee the applicant might experience some discrimination but there was no evidence suggesting that the denial of home registration was long term or that people with similar background as the applicant would be detained in re-education camp [62].  The Board also considered the COI in relation to homeless youth.  While it accepted that the homeless youth might encounter police harassment, the applicant was not a child and there was no indication of maltreatment, as alleged by the applicant, against the adults [63]-[68].  As a result, the Board refused to accept that the applicant suffered maltreatments due to his homeless status or that his homeless status would last for a long period [71].  Insofar as his new claim before the Board about his HIV status, the Board found that, while the applicant’s health condition might be plausible, there was no evidence about the current status of these conditions or what type of medical treatments he required [75]. 

12.Therefore, in light of the applicant’s failure to respond to the Board’s considerable attempts of contact, and of the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.     

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 4 February 2022 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, he said he disagreed with the Board and it was dangerous for him to return to Vietnam.

DISCUSSION

15.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

16.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).

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

18.As the applicant was absent at the hearing before the Board, the Board had assessed the evidence before it and came to its findings of the fact. In fact, the Board did not wholly reject his evidence. The Board is entitled to make such findings.

19.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.”

20.The applicant has not raised any valid ground to challenge the Board’s Decision. To date, the applicant has still not explained his absence before the Board.

21.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.

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

CONCLUSION

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

Dated the 10^th day of May 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