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

HCAL 387/2022

[2022] HKCFI 2782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 387 OF 2022

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 K.W. Lung:

1.   The extension of time for the application for Judicial Review be refused; and

2.   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 13 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application filed on 25 May 2022 is late[1]. This issue will be dealt with 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 21 July 2015[2]. On 27 July 2015, she surrendered to the Immigration Department.  On 18 August 2015 and 1 September 2015 respectively, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the creditor.

5.According to the applicant, she borrowed a loan from a couple who had gangster background in 2011 for her clothing business.  The couple were called Mr. and Mrs. Thao.  In May 2014, she encountered cash flow problem and thus defaulted the payment.  Since then, the Thaos had been threatening her for repayments.  They also hired gangsters to harass and assault her.  The applicant’s husband wanted to divorce her and she moved to her parents’ house where the Thaos also located her.  Out of fear, she escaped to other villages before eventually coming to Hong Kong for protection.  Details of her claim are set out at paragraph 8 of the Notice of Decision dated 31 October 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the claimed risk of harm was assessed to be low [13]; (ii) state protection would be available to her [14]- [17]; and (iii) internal relocation was a viable alternative [18]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 3 May 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence.

9.Having considered the applicant’s evidence, the Board rejected her claim as untruthful [18].  The Board noticed that there were significant inconsistencies in her claim; that she was unable to give any details in support; that, judging from the conducts of the gangsters, they did not possess any intention to kill her; and that she did not provide any evidence on the alleged injuries [25].  The Board also considered her evidence on state protection and internal relocation unsatisfactory [28].  It thus concluded that the applicant’s claim lacked credibility [28].

10.Further, the Board noted that it was only a private monetary dispute without state involvement [42] and that state protection was available [43]-[52].  In any event, internal relocation was a viable option [72]-[78]. 

11.In these circumstances, the Board rejected the applicant’s claim and dismissed her appeal. 

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

12.The applicant has filed Form 86 dated 25 May 2022 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant did not disclose any ground.

DISCUSSION

14.As mentioned in paragraph 1, the applicant’s application is seriously 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.

15.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17.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.”

18.The applicant has not explained why she is late in her application. The Court does not find any fault with the Board in reaching the Board’s Decision.

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

CONCLUSION

20.I refuse to extend time for the applicant to apply for leave for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 19th day of September 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