Ngo Thi Men v. Torture Claims Appeal Board

HCAL 610/2022

[2022] HKCFI 2715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 610 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 May 2019 granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of Vietnam who entered Hong Kong illegally on 5 March 2012 and was arrested by police on 8 March 2012. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Thuy Nguyen District, Hai Phong City, Vietnam. After leaving school she worked as a farmer, married her husband and raised a family with 2 children in her home district.

3.In March 2012 the Applicant sneaked into Hong Kong from China to look for job and was subsequently arrested by police, and was repatriated to Vietnam on 11 June 2012.

4.Upon returning to her home district in Vietnam, the Applicant and her husband in 2013 started a fish farm business by borrowing a loan from a local money-lender with interest payment on the loan payable each month until its full repayment.

5.However, due to water contamination near their fish farm in late 2014 which eventually wiped out their fish that they lost their business in early 2015, and when they were unable to repay their loan, the money-lender sent his men to threaten the Applicant’s husband, and after being assaulted by them on one occasion, her husband fled Vietnam in mid-2015 for Hong Kong.

6.The money-lender and his men then turned to the Applicant and threatened to kill her if she failed to repay the loan, and so on 24 September 2015 she also departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.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 her 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”).

8.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 creditor and 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 her other than to put pressure on her to repay her debts, that in any event it was a private monetary dispute 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 the country away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

9.On 13 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as her Notice of Appeal was found to be 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 decide as a preliminary decision without a hearing whether to allow the late filing of her Notice of Appeal, and by a written notice dated 23 May 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

10.In its decision the Board found the Applicant’s Notice of Appeal to have been late by more than 14 months, that it was a very serious and significant failure to comply with the rules, that her explanations of being sick and did not know the language or the procedures or her ways around were not acceptable to explain such serious delay, and that there were no other matters known to the Board or revealed by the factual basis of her claim which might amount to special circumstances that would make it unjust not to allow the late filing of her Notice of Appeal.

11.On 13 July 2022 the Applicant filed her 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 or in her supporting affirmation of the same date, nor did she request any oral hearing for her application.

12.By then the Applicant was also seriously out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.As the last day of the three-month period for her to file her Form 86 fell on 23 August 2019, the Applicant was therefore almost 3 years late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of 3 years must be considered as extremely substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her then reported address without being returned through undelivered post, and while she was at that time being detained at the Castle Peak Bay Immigration Centre (“CIC”), I do not find such detention amounts to a good or valid reason for her such serious delay.

15.As for the merits of her intended application, as noted above the Applicant has not put forth any ground for her intended challenge, but given the seriousness of the issue at hand and the implication of depriving the Applicant of the second-tier screening process of her non-refoulement claim under the Unified Screening Mechanism (“USM”) due to procedural breach, and in which her life and limbs were said to be at stake, the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing to allow the late filing of her Notice of Appeal.

16.In its consideration of the Applicant’s application for late filing of her Notice of Appeal, the Board stated in its decision as follows:

“16. Following the principles and methodology in the United Kingdom Begum case, I found, firstly, that a delay of 14 months and 19 days in filing an appeal against the Notice of Decision is a serious and significant failure to comply with the rules.

17. Secondly, I do not find the Appellant ‘s reasons for late filing acceptable to explain why she field her Notice of Appeal 14 months and 19 days late. It would not be sufficient for her to make only a bare statement that she was sick, she did not read and write Chinese, and she did not know the procedure and the ways around. She had therefore not given an acceptable explanation why she submitted the Notice of Appeal 14 months and 19 days late. In all the circumstances, the Appellant would have no good reasons for the breach.

18. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

19. There were no other matters known to me or revealed by the factual basis of the Applicant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.

20. Accordingly, I refuse the Appellant’s application for late filing of the Notice of Appeal.”

17.While it is quite apparent from her NCF submitted to the Director and from her Notice of Appeal that the Applicant was without legal representation after the first-tier screening of her claim before the Director, and that she cannot read Chinese without the assistance of Vietnamese interpretation, hence it is not clear from the decision as to what further proof that the Board had in mind that the Applicant should produce to support her such “bare statement”, but I agree that the Board was in the circumstances entitled to find the Applicant’s delay as very serious and significant, and to reject her explanation as such for such serious delay, but in directing itself at [18] of its decision to the 3^rd stage of enquiry alluded to in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, it seems to me that the Board failed to take account of the merits of the Applicant’s appeal as part of the relevant matters of fact within its knowledge under Section 37ZT (2)(b) of the Ordinance, and which was held to be necessary by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 and in Re Qasim Ali [2019] HKCA 430, as Lisa Wong J in giving judgment of the Court in the latter elaborated as follows:

“23. Further, as the last of the 3-stage enquiry alluded to in the Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, 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.”

18.Further, while the Board did state that it had evaluated all the circumstances of the case and the factual basis of the Applicant’s claim to find no other matters known which might amount to special circumstances that might make it unjust not to allow the late filing of her Notice of Appeal ([18]-[19] of decision), it does not appear to me that it had given any or adequate reasons as to what they were or why they did not amount to such special circumstances, nor did it refer to any of the grounds of appeal which the Applicant had stated in section 2 of her Notice of Appeal for the purpose of considering the merits of her appeal.

19.In the premises, and for the reasons given, I am of the view that that Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that (i) in refusing to allow the late filing of her Notice of Appeal, the Board failed to consider the substance of the Applicant’s non-refoulement claim or the merits of her appeal which are relevant matters of fact within the knowledge of the Board under Section 37ZT(2)(b) of the Ordinance; and that (ii) the Board failed to give any or sufficient reasons for finding that they did not amount to special circumstances which would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.

20.Accordingly, I extend time to the Applicant’s late application, and grant leave to her to apply for judicial review of the Board’s decision on the grounds stated above, and direct that she shall file and issue the originating summons within 14 days of this decision, 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 23^rd 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