Lai Thi Tam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 1114/2019[2022] HKCFI 1915

Court

High Court CFI

Date12 Jul 2022

Judge—

Case Document

100%Judiciary

HCAL 1114/2019

[2022] HKCFI 1915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1114 of 2019

BETWEEN
	Lai Thi Tam	Applicant
	and
	Torture Claims Appeal Board/	Putative Respondent
	Non-refoulement Claims Petition Office
	and
	Director of Immigration	Putative Interested Party

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:

1. Leave for the applicant to apply for Judicial Review of the Board’s Decision be granted; and

2. The applicant has to take out the originating summons within 14 days after the grant of leave in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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. Her immigration record showed that she had been subject to a deportation order since 2012 and never departed. On 23 October 2015, she surrendered to the Immigration Department. On 26 February 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor Ms. Van.

5.In brevity, the applicant borrowed a loan from Ms. Van in January 2013 for her business. Her business failed and she defaulted repayment. While Ms. Van granted two extensions of time for her repayment, she was still unable to repay. She went into hiding but heard from her family that Ms. Van threatened to kill her. Out of fear, she fled to Hong Kong for protection. Details of her claim are set out at paragraphs 6 to 23 of the Notice of Decision dated 14 June 2016 (the “Director’s First Decision”).

The Director’s Decisions

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

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

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“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 refused the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that the level of risk of harm upon her refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [30]; (ii) it was a private dispute without state involvement [31]; (iii) state protection would be available to her [32]-[34], and (iv) internal relocation was an option open to her [35]. Further, for reasons set out at the Notice of Further Decision dated 16 December 2016, the Director also rejected her claim on BOR 2 risk (the “Director’s Second Decision”).

8.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

9.On 22 November 2017, the applicant filed a notice of appeal/petition against the Director’s Decisions. She was more than one year out of time [4].

10.The applicant’s explanation for the delay was that she did not receive the Director’s Decisions as she changed address and lost her phone [8]. The Board refused to accept such explanation as she failed to notify the Immigration Department any change of address. The explanation was therefore inadequate and did not justify as “special circumstances”. On this basis, the Board refused to exercise its discretion to allow the applicant’s late filing [10].

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

11.The applicant has filed Form 86 dated 25 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant reiterated the facts in support of her refoulement claim.

DISCUSSION

13.The issue before this Court is whether the Board was correct to refuse to extend time for the applicant’s appeal.

14.Whilst the Court accepts the Board’s finding of the applicant’s explanation for the delay of filing of the notice of appeal to be unacceptable, the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 held:

“17. Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

20. … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

15.The merits of the applicant’s case can be found in the Director’s Decision, which should have been before the Board. That means the Board has to consider the Director’s Decision and make assessment on the merits of the applicant’s case, which the Board had failed to so.

16.I also note that section 37ZT of the Ordinance has been revised to the effect that the Board, for the extension of time for appeal, only has to consider the applicant’s reasons for the delay as provided under subsection 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 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. (Amended 7 of 2021 s. 19)”

17.Section 37 ZT was operative on 1 August 2021 and has no retrospective effect. It will not affect the legal position as on the date of the Board’s Decision. It is therefore obvious that the Board’s Decision may be set aside for an error of the law or procedural unfairness.

18.When the matter is to be re-considered by the Board, the Board may have to apply the law as it existed on the date of the Board’s Decision and consider the merits of the applicant’s case by reference to the Director’s Decision and other relevant materials before it.

19.The applicant succeeds to show that she may have realistic prospect of success in her proposed judicial review.

CONCLUSION

20.I therefore grant leave for the applicant to apply for judicial review of the Board’s Decision. The applicant has to take out the originating summons within 14 days after the grant of leave in accordance with O.53, r.5 of the RHC.

Dated the 12^th day of July 2022

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 12 July 2022 Lai Thi Tam Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 July 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9256/17/11/267/V1820 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 996/16 (Formerly RBCZ 10849/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 1 case

Cases cited in this judgment